NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-3496
_____________
UNITED STATES OF AMERICA
v.
JOSE ANTONIO SANTIAGO,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-05-cr-00032-003
District Judge: The Honorable Juan R. Sánchez
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 30, 2012
Before: FUENTES, SMITH, and JORDAN, Circuit Judges
(Filed: April 30, 2012)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
1
Jose Santiago was tried, convicted, and sentenced for: conspiracy to commit
hostage taking, in violation of 18 U.S.C. § 1203(a); hostage taking, in violation of 18
U.S.C. §§ 1203(a) and 2; and using a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. §§ 924(c) and 2. Santiago appeals his judgment and
sentence. We will affirm.
I. 1
Prior to October 8, 2004, Santiago and co-defendants Alexis Villegas and Angel
Mejia agreed to kidnap Carlos Correa (“Correa”). The co-defendants sought to obtain $1
million in ransom from Gustavo and Rosemary Correa (respectively “Gustavo” and
“Rosemary”), who were Correa’s parents and successful restaurateurs. Both Mejia and
Villegas had previously worked at the Correas’ diner and knew Correa.
Early in the morning of October 8, 2004, Mejia and Villegas broke into Correa’s
home, brandished firearms, and forced Correa into their vehicle. Mejia and Villegas
drove Correa to Santiago’s home. The co-defendants then forced Correa into Santiago’s
shed at gunpoint, blindfolded him, and locked the shed door. The co-defendants met
inside Santiago’s home, discussed ransom plans, and then Mejia and Villegas returned to
their respective homes, leaving Santiago to watch Correa. Villegas, using Correa’s cell
phone, called Rosemary and told her that they had her son and demanded a ransom of $1
million. Rosemary contacted the West Chester, Pennsylvania police department. Co-
defendants placed a series of ransom calls to Rosemary and Gustavo during the period of
1
“After a jury verdict, we review the facts in the light most favorable to the verdict.”
United States v. Jimenez, 513 F.3d 62, 69 (3d Cir. 2008).
2
October 8-10.
The parties agreed to conduct the ransom exchange in the evening of October 10 at
a specified bridge. The co-defendants tied Correa’s hands and feet, blindfolded him, and
forced him into Mejia’s car at gunpoint. Mejia, who was armed, drove towards the
prearranged location. Santiago and Villegas, both of whom were also armed, drove
separately in Santiago’s car. Once they were in the vicinity of the bridge, Villegas exited
Santiago’s car and entered Mejia’s car. Santiago drove away to conduct counter-
surveillance. As Mejia’s car neared the bridge, Villegas exited and hid nearby. Gustavo,
accompanied by two law enforcement officers, waited in a car on the other side of the
bridge. Mejia untied Correa, ordered him to sit on a bridge guardrail, and instructed
Gustavo to drive forward with the money. As Gustavo drove forward, Mejia fired his
gun in the general direction of Correa. The FBI SWAT team responded, and Mejia drove
off while firing at the agents. The officers secured Correa and arrested Mejia after a brief
car chase. From Mejia’s car, the officers recovered a handgun and a cell phone, both of
which Santiago purchased.
When the shooting occurred, Villegas fled by running into a creek. Santiago
drove to meet Villegas and took him to Santiago’s house. On October 11, agents
executed a search warrant at Santiago’s home. Both Santiago and Villegas were arrested.
The agents recovered a handgun from Santiago’s pants. The agents found two other guns
in the bedroom where Santiago and Villegas slept. These three guns and the gun
recovered from Mejia’s car were registered to Santiago. The agents found Correa’s cell
3
phone inside Santiago’s car. 2
Prior to trial, the District Court granted Santiago’s motion for the production of
Correa’s computer hard drive. Santiago alleged that Correa accumulated significant
gambling debts and that information from the hard drive would likely support Santiago’s
theory that Correa staged his own kidnapping in order to obtain ransom money to cover
those debts.
Tami Loehrs, Santiago’s computer forensics expert, reviewed Correa’s hard drive
and drafted a memorandum of her results. Loehrs found various files indicative of child
pornography and emails suggesting that Correa had solicited prostitutes, several online
poker applications, miscellaneous financial information, a video game titled “River City
Ransom,” and a reference to a website that included the words “A Little Kidnapping
Never Hurt Anyone.”
The government moved to limit any cross-examination regarding Correa’s
possession of child pornography to issues bearing on Correa’s potential bias (e.g.,
whether Correa was cooperating with the government to avoid criminal charges).
Santiago countered that, pursuant to Fed. R. Evid. 404(b), he should be permitted to
question Correa as to evidence of his possession of child pornography, solicitation of
prostitutes, and gambling. Santiago argued that this evidence supported his revised
theory that Correa staged his own kidnapping to cover his expenses related to gambling
and his sexual interests. The government disputed this theory, noting that there was no
2
Both Mejia and Villegas pled guilty to various counts related to kidnapping Correa.
4
evidence that Correa was in significant debt.
On August 18, 2008, a hearing was held on the government’s motion to limit
cross-examination of Correa. Santiago’s counsel conceded at this hearing that Correa
was “not in debt” and that there was no evidence he had a gambling problem. Santiago
argued, however, that the evidence from Correa’s hard drive demonstrated a sex
addiction. Santiago asserted that although Correa was solvent, he still had a financial
motive to stage his own kidnapping because the evidence from the hard drive
demonstrated an escalating pathology for viewing pornography and frequenting
prostitutes. In sum, Santiago argued that Correa needed additional money to feed his
growing sexual addiction. The District Court agreed, at Santiago’s request, to reserve
ruling on the government’s motion until defense counsel obtained a report from a
psychologist opining on Correa’s alleged sex addiction.
On August 25, 2008, Dr. Timothy Foley, Santiago’s expert psychologist, issued a
report. Dr. Foley—based on his review of Correa’s emails, Internet history, financial
records, and Loehrs’s forensic analysis—concluded that there was substantial support for
finding that Correa exhibited “sexually addictive” behavior and “compulsive use of the
Internet” prior to his abduction in October 2004. Notably, Dr. Foley did not interview
Correa and could not conclude that Correa had a sex addiction. Dr. Foley was also
unable to determine the amount of money that Correa spent on his sexual conduct or
whether Correa’s income was insufficient to support that conduct.
On August 29, 2008, following jury selection for Santiago’s trial, the government
moved to preclude Dr. Foley’s testimony. The government argued that Dr. Foley’s
5
testimony was not relevant because there was no evidence that Correa’s sexual conduct
caused financial distress. The government also argued that Dr. Foley’s testimony would
be unduly prejudicial because it was intended to inflame and mislead the jury. Santiago
countered that Dr. Foley’s testimony was probative of Correa’s purported motive because
Dr. Foley would “explain that people do extreme things because of sex.”
The District Court, pursuant to Fed. R. Evid. 403, granted the government’s
motions, limiting the cross-examination of Correa regarding child pornography to issues
bearing on Correa’s potential bias and precluding other evidence concerning Correa’s
sexual history, conduct, or preferences. The court reasoned that an inquiry into the
explicit details of the child pornography found on Correa’s computer would be
“misleading, unfairly prejudicial, confusing to the jury, and irrelevant, substantially
outweighing any probative value.” Dkt. # 220 at n.1. Similarly, the court excluded the
other evidence of Correa’s sexual conduct and preferences because Santiago failed to
demonstrate that the “probative value outweigh[ed] the substantial prejudice of such
inflammatory, confusing, and misleading evidence.” Id. Thus, the court limited
Santiago’s cross-examination of Correa’s sexual behavior to the following: “the fact that
child pornography was found in Correa’s personal computer, that the local and federal
governments did not bring criminal charges against Correa, that Correa understood the
minimum and maximum penalties of the potential criminal charges, and any benefit or
leniency Correa may receive for testifying.” Id.
Near the close of the government’s case, Santiago announced his intention to call
Loehrs as an expert witness. Santiago’s counsel proffered that Loehrs would testify
6
about certain items found on Correa’s computer, namely “the gambling portion,”
Correa’s ability to communicate anonymously through certain software, and that Correa
purportedly erased certain files. The government countered that such testimony was not
relevant. On September 9, 2008, the District Court, pursuant to Fed. R. Evid. 402 and
403, denied Santiago’s request to present Loehrs’s testimony because it was not relevant
or probative to the issue of whether Correa staged his kidnapping and the jury may be
“confused by the evidence of erasure and misled into concluding that Correa’s crimes or
character are material to its judgment in this case.” Dkt. # 231 n.1.
During Santiago’s case-in-chief, he again sought to call Loehrs as an expert
witness. Santiago made a new proffer, stating that Loehrs would testify about what she
found on Correa’s computer related to: gambling; financial information (e.g., Correa’s
communications with prostitutes); “anonymizing” software; a reference to the “River
City Ransom” video game; a reference to a website that included the words “A Little
Kidnapping Never Hurt Anyone”; and certain information regarding pornography and
child pornography. The government moved to preclude this testimony. On September
11, 2008, the District Court granted the government’s motion, precluding Loehrs from
testifying because: Correa’s gambling was not relevant because Santiago failed to
demonstrate a connection between Correa’s gambling and a motive to stage his own
kidnapping; Correa’s financial statements were inadmissible hearsay; testimony as to
Correa’s use of “anonymizing” software was previously excluded in the court’s
September 9 Order; the textual reference to a website referring to kidnapping and the
video game were highly prejudicial and outweighed any probative value; and evidence of
7
Correa’s membership to pornographic websites was irrelevant without any evidence
linking his memberships to monetary expenditures. Dkt. # 234 n.1.
The jury convicted Santiago of conspiracy to commit hostage taking, hostage
taking, and use of a firearm in relation to a crime of violence. The District Court
sentenced Santiago to 319 months’ imprisonment. Santiago timely appealed.
II. 3
A.
Santiago argues that the District Court violated his Sixth Amendment right to
confront Correa by precluding cross-examination as to his alleged sex addiction. We
disagree. 4
Although the Confrontation Clause “guarantees a criminal defendant the right to
confront witnesses on cross-examination, a district court retains wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about . . . harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only marginally relevant.” United
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291.
4
We review a district court’s “limitation on cross-examination for abuse of discretion.”
United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008); see also United States v.
Kellogg, 510 F.3d 188, 191 (3d Cir. 2007). Santiago asserts that de novo review is
applicable because, inter alia, the District Court erred in placing the burden under Rule
403 on Santiago. It is immaterial as to which standard we apply because Santiago cannot
prevail under the more generous de novo standard.
8
States v. Jimenez, 513 F.3d 62, 76 (3d Cir. 2008) (quotation marks omitted).
Courts often rely on Rule 403 when limiting cross-examination. Under Rule 403,
courts may exclude relevant evidence if its “probative value is substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury.”
The District Court did not err in limiting Correa’s cross-examination pursuant to
Rule 403. Santiago sought to demonstrate that Correa’s sexual conduct created a
financial motive to stage the kidnapping. However, there was no evidence that Correa
was in debt or that Correa’s income was insufficient to satisfy his sexual activities.
Further, we are not persuaded by Santiago’s reliance on Correa’s emails claiming to be
“broke.” Correa made those claims while negotiating prices with prostitutes. As the
potential purchaser, Correa had the incentive to understate his ability to pay.
Consequently, the context of Correa’s claims that he was “broke” eviscerates any serious
probative value. In sum, without a connection between Correa’s sexual activities and his
financial condition, evidence of Correa’s sexual conduct has little probative value for
demonstrating a financial motive to stage the kidnapping. 5
Similarly, the District Court did not err in concluding that unfair prejudice or the
risk of jury confusion would substantially outweigh the minimal probative value of such
cross-examination. Evidence of Correa soliciting prostitutes and viewing pornography
would likely inflame the jury. Moreover, Correa’s sexual proclivities were not on trial
5
Restricting Santiago’s cross-examination of Correa’s sexual conduct was reasonable
and did not completely preclude Santiago from demonstrating a financial motive. For
example, Santiago was able to cross-examine Correa generally about his financial status
and expenditures without referencing the exact nature of those expenditures.
9
and the introduction of such extensive evidence on cross-examination would likely
mislead and confuse the jury as to the central issues in the case. 6 Accordingly, the
District Court did not err by limiting Correa’s cross-examination under Rule 403.
B.
The District Court did not abuse its discretion by precluding the expert testimony
of Dr. Foley and Loehrs. 7 As to Dr. Foley, Santiago proffered that he would have
testified that the “contents of Correa’s computer were consistent with sex addiction and
that sex addicts, like other addicts, will go to extreme means to satisfy their addictions.”
Appellant’s Br. at 86. Dr. Foley’s report concluded generally that Correa’s sexual
conduct “consumed much of [his] time and resources . . . to the exclusion of other
activities.” We agree with the District Court that Dr. Foley’s testimony would have had
only minimal probative value. Dr. Foley did not interview Correa and could not
6
Contrary to Santiago’s assertions, district courts may exclude probative evidence
pursuant to Rule 403 in criminal cases based on concerns that the government will be
unfairly prejudiced. See, e.g., Jimenez, 513 F.3d at 76 (holding that the district court did
not abuse its discretion by relying on Rule 403 to limit cross-examination of the
government’s witness); United States v. Ellis, 156 F.3d 493, 497-98 (3d Cir. 1998)
(same); United States v. Boyer, 694 F.2d 58, 60 (3d Cir. 1982) (same).
10
determine the amount of money, if any, Correa spent when accessing pornographic
websites or hiring prostitutes. Similarly, Dr. Foley’s report did not conclude that Correa
needed additional revenue to maintain or increase his sexual activities. Dr. Foley also did
not conclude that Correa’s income prior to the kidnapping was insufficient to satisfy his
sexual interests. Because Dr. Foley was unable to directly link Correa’s sexual conduct
to a motivation for additional income, Dr. Foley’s testimony would have had minimal
probative value. Dr. Foley’s testimony would likely have unfairly prejudiced the
government’s prosecution by inflaming and misleading the jury as discussed supra in
Section II.A. Thus, the District Court did not abuse its discretion by excluding Dr.
Foley’s testimony under Rule 403.
Moreover, the District Court did not abuse its discretion by precluding Loehrs
from testifying. Santiago asserts that Loehrs would testify about: (1) the video game
titled “River City Ransom” and a reference to a webpage containing the phrase “A Little
Kidnapping Never Hurt Anyone”; (2) evidence that Correa was “broke”; and (3) Correa’s
gambling.
7
We review a district court’s preclusion of expert testimony for abuse of discretion.
United States v. Mitchell, 365 F.3d 215, 233 (3d Cir. 2004).
Santiago asserts that our review should be de novo because the District Court
failed to conduct an on-record balancing of the 403 factors. We are not persuaded. The
District Court’s Order limiting cross-examination, when read in context with the court’s
on-record statements made at oral argument, demonstrates that the District Court
considered and weighed the probative value of the evidence against any unfair prejudice
or confusion that the cross-examination might cause. See, e.g., United States v. Sriyuth,
98 F.3d 739, 745 n.9 (3d Cir. 1996) (stating that we apply an abuse of discretion standard
where evidence is excluded under Rule 403 unless the court fails to explain its grounds
for excluding the evidence and its reasons for doing so are not apparent from the record).
11
As to the video game and webpage, Loehrs could testify only as to their respective
titles and could not provide a description of their content. In the instant circumstances,
the titles, without more, are not relevant because they do not have a tendency to make any
fact at issue more or less probable than it would be without the title evidence. See, e.g.,
Fed. R. Evid. 401(a). The jury would be left to speculate as to the content of the game or
the website, and thus, the District Court did not err in excluding this evidence.
As to Correa’s financial condition, Loehrs would testify that Correa, while
soliciting sex through e-mails, represented on several occasions that he was “broke.” As
discussed supra Section II.A, we agree with the District Court that the context of these
representations—haggling over prices—diminishes any probative value. The District
Court also did not err in concluding that the probative value of this evidence was
substantially outweighed by the dangers of unfair prejudice (i.e., inflaming the jury) and
misleading the jury (i.e., placing Correa’s character on trial). See, e.g., Fed. R. Evid. 403.
Finally, as to Correa’s gambling issues, Loehrs would testify that Correa had
access to multiple gambling websites and that he maintained spreadsheets tracking his
gambling performance. However, Correa admitted on direct examination that he played
poker for money and gambled in Atlantic City, New Jersey. Santiago questioned Correa
on cross-examination about his gambling, including gambling websites and spreadsheets.
Although there was evidence that Correa enjoyed gambling, Santiago did not produce
any evidence that Correa had any significant gambling debts or that his gambling
activities caused financial distress. Santiago failed to establish a connection between
Correa’s gambling and his alleged motive to stage his kidnapping. Consequently,
12
Loehrs’s testimony on the gambling was not relevant under Rule 401. Thus, the District
Court did not abuse its discretion in precluding Loehrs from testifying. 8
8
Santiago’s three remaining issues are meritless. First, the District Court did not abuse
its discretion, Silveus, 542 F.3d at 1005, by denying Santiago the opportunity to conduct
recross-examination of Correa, Rosemary, and Villegas. District courts have wide
discretion to restrict recross-examination, especially when no new matters were raised on
redirect. United States v. Riggi, 951 F.2d 1368, 1374-75 (3d Cir. 1991). Here, the
government did not raise any new matters on redirect warranting recross-examination.
Second, the District Court did not abuse its discretion, United States v. Hakim, 344
F.3d 324, 328 (3d Cir. 2003), by denying Santiago’s motion for a mistrial. During
summation, the prosecutor argued that the entry for “Carlos” at phone number “610-864-
0477” in Mejia’s cell phone contact list referred to Mejia’s nephew, not Carlos Correa.
The record supports the government’s assertion. Villegas testified that the cell phone
number for Mejia’s nephew was “610-864-0477.” Thus, a reasonable inference could be
drawn that the entry for “Carlos” in Mejia’s cell phone referred to Mejia’s nephew, not
Carlos Correa.
Third, the District Court did not abuse its discretion by denying Santiago’s motion
for a downward variance when imposing Santiago’s sentence. See, e.g., Gall v. United
States, 552 U.S. 38, 51 (2007) (applying an abuse-of-discretion standard when reviewing
whether criminal sentences were the product of procedural error or were substantively
unreasonable). Contrary to Santiago’s assertions, the record clearly reflects that the
District Court considered Santiago’s motion and did not commit procedural error.
Notably, the District Court: heard argument from the parties at sentencing on the motion;
read Santiago’s memorandum in aid of sentencing with “great care”; and determined that
Santiago’s guideline range was appropriately calculated (neither party contends that the
guideline calculation was improper). The court also reviewed in detail the Section
3553(a) factors that were pertinent to Santiago’s sentence (e.g., the nature and
circumstances of the crime were “very serious” because they involved kidnapping at gun
point, and Santiago’s involvement was especially crucial because he mentored his much
younger co-conspirators).
Also, the District Court did not substantively err in imposing a within-guidelines
sentence because, inter alia, Santiago: was involved in a violent kidnapping; provided the
guns to his co-conspirators; orchestrated the ransom demands; served as a mentor to his
co-conspirators; conducted counter-surveillance during the ransom exchange; and locked
Correa in his shed. Considering the violent nature of—and Santiago’s essential
participation in—the crime and the need for deterrence, Santiago’s 319-month sentence
was reasonable. Thus, the Court did not abuse its discretion.
13
Accordingly, we will affirm. 9
9
The government moved to file Volume I of its Supplemental Appendix under seal
because it contains documents that were sealed by the District Court to protect the
privacy of a government witness. Santiago moved to file Volume VI of the Joint
Appendix under seal for the same reason. Both of these motions are granted. Because
these motions did not specify a desired duration and because none of the documents
sought to be sealed are grand jury materials, presentence reports, or statements of reasons
for the sentence, as set forth in Local App. R. 106.1(c)(1), we will direct the Clerk’s
Office to seal the materials subject to the aforementioned motions for five years from the
conclusion of the case, after which the materials are to be unsealed without notice to the
parties. See Local App. R. 106.1.
14