IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 12, 2008
No. 99-40370
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICENTE ALVARADO-VALDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:98-CR-608-2
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In 1998, Vicente Alvarado-Valdez , Ricardo Flores, Pablo Santos Chapa,
and Julian Medrano were indicted for conspiracy to possess with intent to dis-
tribute more than five kilograms of cocaine. Alvarado-Valdez and Chapa were
charged in a second count with aiding and abetting possession with intent to
distribute more than five kilograms of cocaine. Chapa pleaded guilty. Alvarado-
Valdez, Flores, and Medrano were convicted by a jury as charged. We affirmed
No. 99-40370
the convictions of Medrano and Flores. United States v. Flores, No. 99-40367,
281 F.3d 1279 (table), 2001 WL 1692443 (5th Cir. Nov. 26, 2001) (per curiam).
We erroneously dismissed Alvarado-Valdez’s appeal for want of prosecution and
have reinstated it. In light of Crawford v. Washington, 541 U.S. 36 (2004), we
vacate and remand for a new trial.
I.
On July 17, 1997, Border Patrol agents stopped a tractor-trailer owned by
Zenon Cantu and driven by Eleazar Eggers near Laredo, Texas. Federal officials
found approximately 1,436 kilograms of powdered cocaine inside.
Cantu surrendered the next morning to agents of the Drug Enforcement
Administration, and federal agents conducted a warranted search of his house,
seizing telephone and address books, ledgers, and other documents. Eggers and
Cantu were indicted for conspiracy to possess with intent to distribute cocaine
in violation of 21 U.S.C. § 841(a)(1). Cantu pleaded guilty pursuant to a plea
agreement.
More than a year later, Alvarado-Valdez and Chapa was arrested by fed-
eral officials, and two days later Flores and Medrano were arrested. On July 21,
1998, the government obtained an indictment charging that (i) Alvarado-Valdez
and the three co-defendants (Chapa, Medrano, and Flores) had conspired and
agreed to possess with intent to distribute more than five kilograms of cocaine
in violation of 21 U.S.C. § 841(a)(1) in June and July 1997; and (ii) Alvarado-
Valdez and Chapa had possessed with intent to distribute approximately 1,436.2
kilograms of cocaine in violation of the same provision.
Chapa entered into a plea agreement in September 1998, pleading guilty
only to Count One of the indictment. Alvarado-Valdez, Medrano, and Flores
were convicted by a jury.
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II.
A.
The government’s evidence against Alvarado-Valdez consisted of (i) testi-
mony by Cantu and Chapa about a conspiracy to transport cocaine in June and
July 1997, (ii) telephone records showing calls from Cantu and Chapa to Alvara-
do-Valdez during those months, and (iii) evidence about an alleged 1996 mari-
huana transaction involving Cantu and Alvarado-Valdez. Cantu testified at
trial. Before trial, Chapa fled to Mexico, and the government was unable to lo-
cate him. The government had Officer Garcia read portions of Chapa’s interro-
gation into evidence over the objection of Alvarado-Valdez’s counsel.
1.
As the government acknowledges, it relied primarily on the testimony of
Cantu, who owned a trucking business in Laredo. He testified to overseeing the
transportation of fifty loads of narcotics, of which he personally drove thirty-five.
Cantu testified that Chapa recruited Alvarado-Valdez, who in turn re-
cruited Cantu, who said he had known Alvarado-Valdez for about fifteen months
before June 1997, when the first shipment of cocaine was transported. Cantu
claimed Alvarado-Valdez approached him in May 1997 to transport a load of
marihuana but that nothing came of that deal. Alvarado-Valdez then proposed
Cantu transport cocaine at a rate of $300 per kilogram in June. Cantu recruited
Medrano, Flores, and Eggers to drive the tractor-trailers.
Medrano and Flores drove the first load. Cantu testified he and Flores
picked up 840 kilograms of cocaine from Alvarado-Valdez’s house. To the con-
trary, however, Cantu also testified that he never saw cocaine at Alvarado-Val-
dez’s house, from which Flores drove the cocaine to Cantu’s house.
Medrano and Flores successfully transported the cocaine from Laredo to
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Port Washington, New York.1 While there, Medrano called Cantu and told him
that David Gomez, also known as “Chongo,” their contact person, had not ar-
rived, though they had called him numerous times. Cantu said he informed
Alvarado-Valdez of this problem.
Thereafter, Medrano and Flores reported that Chongo had retrieved the
trailer. Cantu claims he received $202,000 from Alvarado-Valdez on June 18,
which he in turn gave to Medrano and Flores in exchange for a fee of $20,000.
For the second load, which was expected to be approximately 1,145 kilo-
grams, Cantu met Alvarado-Valdez and Chapa in early July. This time Chapa
was in possession of the cocaine. Cantu could not hire Medrano and Flores
again, so he turned to Eggers.
Cantu and his son drove to a mall to meet a van with the cocaine. The van
was driven by the same man who had delivered the cocaine the previous month.
Alvarado-Valdez told Cantu the truck belonged to him even though it was reg-
istered to Chapa. Cantu drove the cocaine to his home and noticed that it had
branding similar to the June shipment, indicating that they came from the same
source.
Eggers met with Chapa, Alvarado-Valdez, Cantu, and a long-haired
stranger, Chongo, to whom the cocaine was to be delivered. Alvarado-Valdez
gave Cantu, who in turn gave Eggers, Chongo’s cellular phone and pager num-
bers.
Cantu acquired legitimate bills of lading from Flores’s business, Panamex,
claiming the trailer would be loaded with furniture. Eggers took possession of
the trailer on July 17. After Eggers departed, Cantu testified that he notified
Alvarado-Valdez. Eggers, driving the trailer, was arrested that day at the Bor-
der Patrol checkpoint. He was in possession of Cantu’s loaned cell phone, the
1
Medrano and Flores testified to only transporting a load of furniture to Port Wash-
ington. Cantu testified that he would disguise cocaine shipments as furniture shipments.
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No. 99-40370
one used by Medrano on the previous trip. Agents seized 1,436.2 kilograms of
cocaine.
Cantu had followed Eggers to the checkpoint and saw all this. He testified
to driving to Alvarado-Valdez’s house immediately to inform him.
Eggers implicated Cantu and Chapa but not Alvarado-Valdez. Chapa fled
to Mexico. The following day, Chapa called Alvarado-Valdez and suggested Can-
tu and Alvarado-Valdez rendezvous with him in Mexico. Alvarado-Valdez feared
repercussions from superiors if he went to Mexico. Cantu turned himself in on
the advice of counsel.
2.
Because Chapa had fled to Mexico, the government called Garcia to testify
as to what Chapa had told him in interrogation. Garcia stated the following over
objection of counsel:
Mr. Chapa stated that in early May 1997, Chapa was introduced
to Francisco Paco; that is, Paco, by a friend of Chapa identified as
Juan. Chapa stated that Francisco Paco propositioned Chapa to
transport approximately 800 kilograms estimated by gross weight
of cocaine from Laredo Texas to Port Washington, New York. Cha-
pa added that Chapa was to getting [sic] paid $350 per kilograms of
cocaine that Chapa transported. Chapa stated that due to financial
reasons Chapa agreed, advising Francisco Paco that Chapa would
need to find a driver that could get a legitimate load as a cover load
to Port Washington, New York.
***
Chapa stated that approximately one week later, after the first
load of cocaine was delivered, Chapa was once again propositioned
by Francisco Paco while in Laredo, Tamaulipas, Mexico to transport
1,[4]36.2 kilograms estimated gross weight of cocaine, which was
seizedSSor were seized on 07-17-97.
***
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No. 99-40370
Chapa also stated that during this period of time Chapa was un-
der constant pressure from PacoSSor Francisco, excuse me, Paco to
have the cocaine delivered. Chapa would constantly call Cantu and
pressure Cantu into finding a driver to deliver the cocaine.
B.
The government introduced other evidence, though it admits to relying pri-
marily on the above testimony. Authorities obtained a search warrant for Can-
tu’s and Chapa’s properties; there was no search of Alvarado-Valdez’s residence.
Agents seized telephone and address books, ledgers, documents, communication
devices, radios, and cellular phones from Cantu’s property. The search also un-
covered a yellow notebook with notations indicative of drug activity. The phone
numbers of other conspirators were found. Though the government says it found
two documents bearing Alvarado-Valdez’s name, the record is inconclusive. The
search of Chapa’s residence uncovered various phone numbers of the co-conspir-
ators but not Alvarado-Valdez’s.
The phone records indicate a flurry of calls among the conspirators, in-
cluding to and from numbers allegedly belonging to Alvarado-Valdez, around the
time of the two deliveries. Alvarado-Valdez contends that one of the numbers
attributed to him, which was in his son’s name, was not his. Panamex organized
deliveries to Port Washington on the dates alleged, but Medrano and Flores ad-
mitted to at least making furniture deliveries.
III.
Alvarado-Valdez claims his Sixth Amendment Confrontation Clause right
was violated by the introduction of Chapa’s testimony. We review Confrontation
Clause objections de novo, subject to harmless error analysis. United States v.
Jimenez, 464 F.3d 555, 558 (5th Cir. 2006). Both sides agree that Alvarado-
Valdez properly objected to the subject testimony and preserved the issue for de
novo review.
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No. 99-40370
Crawford, 541 U.S. at 68, instituted a categorical rule barring the admis-
sion of out-of-court testimonial statements against the accused absent opportuni-
ty for cross-examination. The bar applies “irrespective of whether the statement
falls within a firmly rooted exception or bears particularized guarantees of
trustworthiness.” United States v. Holmes, 406 F.3d 337, 348 (5th Cir. 2005).
Chapa’s testimony is within the rule, because Crawford applies at a minimum
“to police interrogations.” Crawford, 541 U.S. at 68.
Nor is there any question that the testimony was offered to prove the mat-
ter asserted and therefore was hearsay. See FED. R. EVID. 801; Holmes, 406 F.3d
at 349. Chapa’s testimony was offered to prove that he and Alvarado-Valdez
conspired with the others to transport cocaine in June and July 1997. Though
the parties agree a constitutional violation occurred,2 they disagree what burden
the government must meet to establish harmless error.
A.
A defendant convicted on the basis of constitutionally inadmissible Con-
frontation Clause evidence is entitled to a new trial unless it was harmless in
that there “‘there was [no] reasonable possibility that the evidence complained
of might have contributed to the conviction.’” Chapman v. California , 386 U.S.
18, 24 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). The
government bears the burden of establishing the error is harmless beyond a rea-
sonable doubt. United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005).
The government argues that it can meet its burden by pointing to other
evidence in the record to support conviction. For this, the government wholly
relies on United States v. Rodriguez-Martinez, 480 F.3d 303 (5th Cir. 2007), in
which we said,
2
In fairness to the district court, we recognize that Crawford had not been decided
when this case was tried.
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No. 99-40370
To determine whether the Confrontation Clause error was harmless,
“[t]he correct inquiry is whether, assuming that the damaging po-
tential of cross-examination were fully realized, a reviewing court
might nonetheless say the error was harmless beyond a reasonable
doubt.” We consider “the importance of the witness’ testimony in
the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-ex-
amination otherwise permitted, and, of course, the overall strength
of the prosecution’s case.”
Rodriguez-Martinez, 480 F.3d at 308 (quoting Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986)).
In contrast, Alvarado-Valdez claims the error cannot be harmless if it
might have contributed to the verdict, even taking account of the other evidence.
Alvarado-Valdez relies on Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir. 1993),
in which we said the inquiry is whether there is “no reasonable possibility that
the tainted evidence might have contributed to the jury’s verdict of guilt.”
Van Arsdall did not announce a new harmless-error standard for Confron-
tation Clause violations. The Court explicitly relied on Chapman for the proposi-
tion that Confrontation Clause violations are subject to harmless error analysis.
Van Arsdall, 475 U.S. at 684. Nevertheless, how the government must meet its
burden of proof is based on what kind of violation is involved.
In Van Arsdall, the Court was concerned with Confrontation Clause viola-
tions arising from the denial of a defendant’s right to impeach a witness for bias.
See Van Arsdall, 475 U.S. at 684. The Court’s particular test makes sense in
light of that specific Confrontation Clause violation: To determine whether a de-
fendant was harmed by not being able to impeach a witness, it is necessary to
look at what the full exercise of cross-examination could have disclosed. In Low-
ery, however, the Confrontation Clause violation involved the admission of a vid-
eotaped deposition of a six-year-old victim of molestation. See Lowery, 988 F.2d
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at 1366.
In the context of the instant Confrontation Clause violation, the latter ap-
proach is correct. Between Confrontation Clause violations that arise in the
context of the impeachment of a witness for bias and those involving the very
introduction of inadmissible testimony, the right announced in Crawford is
closer to the latter. Accordingly, the government must demonstrate beyond a
reasonable doubt that the tainted evidence did not contribute to the conviction.
B.
Ultimately, this case turns on the way in which the government must meet
its burden by showing that other evidence in the record demonstrates that the
error in admitting Chapa’s testimony was harmless beyond a reasonable doubt.
Our focus is on the possibility of harm arising from Chapa’s testimony and not
necessarily on the possibility of its relationship to other evidence.
Our task would be difficult were it not for the government’s insistent reli-
ance on the testimony in its closing argument, in light of which we cannot say
the error was harmless. In that argument, the government said,
[L]et’s consider the statement of Cantu and Chapa without refer-
ence to [Alvarado-Valdez, Medrano, and Flores]. Okay? What did
Mr Cantu tell you? Well, he told you that in the early part of June
he was approached by Chapa and was asked to find transportation
to move 840 kilos of cocaine. Let’s look at what Mr. Chapa told you.
Mr. Chapa, you heard, at the time of his arrest said, as Agent Gar-
cia said, “Sometime in early may of 1997 I was introduce [sic] to a
man named Paco by my friend Palacios Cantu, and Paco asked me
to help move some 800 kilos of cocaine.” What else did he tell Agent
Garcia? “Well, after the first load of cocaine was successfully deliv-
ered to New York, I was again approached by Paco a week later.”
Okay. Let’s take that just in and of itself. Forget everything else
about [Alvarado-Valdez, Medrano, and Flores].
In other words, the government relied on the similarity of Chapa’s and
Cantu’s testimony to prove the conspiracy and, by implication, Alvarado-Valdez’s
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No. 99-40370
participation in it. We cannot see how the government can conclusively show
that the tainted evidence did not contribute to the conviction, because the gov-
ernment’s closing argument relied on that very evidence. There is no way to de-
termine whether the jury would have convicted Alvarado-Valdez purely on the
basis of Cantu’s testimony or of any of the other evidence. That would require
retrying the case on appeal, at best, or engaging in pure speculation, at worst.
The judgment is VACATED, and this matter is REMANDED for new trial
or other proceedings as appropriate. We need not address the asserted error in
admission of evidence pursuant to Federal Rule of Evidence 404(b), and we do
not comment on the sentence.
10