United States v. Acosta

United States Court of Appeals
Fifth Circuit
F I L E D
In the January 9, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 05-51691
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT ACOSTA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Western District of Texas
m 3:04-CR-2698-2
______________________________

Before SMITH, BENAVIDES, and PRADO, observed a car with Chihuahuan license plates
Circuit Judges. pull up to an empty flatbed truck.1 Juan Mar-
rufo exited the car’s passenger seat, and he
JERRY E. SMITH, Circuit Judge: and the driver of the car unloaded two large
bags from the car and handed them to some-
Robert Acosta claims a violation of his one inside the truck. The two then re-entered
Sixth Amendment right to confront a hostile
witness. We affirm.
1
Chihuahua is a state of Mexico. Lucero tes-
I.
tified that this was significant because of the high
While conducting routine surveillance at an
number of drug arrests involving cars with
El Paso truck stop, police officer Jose Lucero Chihuahuan license plates.
the car and drove to the truck stop’s conve- who was waiting in the truck’s cab. Marrufo
nience store. Lucero followed and observed purchased a wrench from the convenience
Marrufo enter the store, after which the car store, which Acosta used to open the compart-
left the truck stop. Suspecting narcotics ment where the drugs were concealed. The
smuggling, Lucero requested assistance from two were arrested shortly thereafter.
border patrol agent Gilbert Almanza, who ar-
rived approximately fifteen minutes later. The Marrufo was called as a government wit-
two officers observed Marrufo leave the store ness at Acosta’s trial. Before testifying, he ap-
and enter the cab of the truck to which he had peared outside the jury’s presence and in-
earlier delivered the two bags. formed the court that, because he feared for
the safety of his family, he did not want to tes-
The officers approached the truck and dis- tify. Although he did not state the source of
played their police credentials. Marrufo was in his fear, it appeared, and the court inferred,
the driver’s seat and consented to a search of that it was because of threats from Acosta.
the truck, during which Almanza’s canine The court ordered Marrufo to testify, had
alerted to the presence of narcotics. Marrufo Acosta confined following that day’s proceed-
summoned Acosta, who exited the truck’s ings, and had Acosta’s communications moni-
sleeper compartment. A hidden compartment tored.
was discovered that contained forty bundles of
cocaine weighing just over eighty-six pounds Marrufo testified that he was a team driver
and worth approximately $500,000. with Acosta and that the purpose of their visit
to the truck stop was to pick up cocaine. He
Before Acosta’s trial, Marrufo pleaded guil- said Acosta was the only other person in the
ty. In addition to providing a statement artic- truck. After answering questions about his
ulating the factual basis of his guilty plea, Mar- own involvement in the offense, he refused to
rufo made an additional statement to qualify answer several questions about Acosta’s direct
for a “safety valve” sentence reduction: He participation in the crime.2 Several of these
said he had been employed in June by the questions referenced Marrufo’s safety valve
trucking company owned by Acosta’s brother statement and the statement that was the fac-
and had driven for the company without inci- tual basis of his guilty plea.3 Acosta did not
dent until October, when Acosta approached object to the questions.
him with the proposition of making additional
money by smuggling cocaine. Initially hesi-
tant, Marrufo agreed when Acosta demon- 2
Marrufo refused to answer, inter alia, who in
strated the sophistication of the truck’s hidden the truck received the bags of cocaine from him,
compartment. whether he discussed the cocaine with Acosta,
whether Acosta showed him the hidden compart-
After Marrufo agreed to help smuggle co- ment, and whether Acosta knew about the plan to
caine, he was assigned to drive with Acosta to pick up the cocaine.
El Paso. At the truck stop they were called, as 3
An example is the following: “You stated in
planned, with instructions for picking up the
that statement that when we got to the tractor, we
drugs. Marrufo met the courier, whom he did
took the bags with cocaine out of the car, and
not know, and helped transfer two large bags I handed them to Robert. You said that in your
of cocaine from the courier’s car to Acosta, statement, didn’t you?”

2
 On cross-examination Marrufo did not re- hostile witnesses.4 We review, for plain error
fuse to answer any of Acosta’s questions. only, any Confrontation Clause issues that
Acosta probed Marrufo’s motives in making were not contemporaneosly raised at trial.5
his prior statements. Acosta elicited testi- Confrontation Clause objections that were
mony, over the government’s objection, that properly raised at trial are reviewed de novo,
Marrufo had believed that he would receive a subject to harmless error analysis.6
more lenient sentence if he implicated Acosta.
The court found that Acosta’s questioning was In Crawford v. Washington, 541 U.S. 36
designed to impeach Marrufo by illustrating a (2004), the Court fundamentally altered the
motive to lie. Marrufo was not cross-exam- role of the Confrontation Clause. Twenty-four
ined about the portions of his prior statements years before Crawford, the Court collapsed the
that implicated Acosta. Confrontation Clause into the hearsay rules of
the Federal Rules of Evidence in Ohio v. Rob-
The government moved to admit Marrufo’s erts, 448 U.S. 56 (1980), holding that state-
safety valve statement, and the court admitted ments of unavailable witnesses could be admit-
it with a limiting instruction, finding that Acos- ted, consistent with the Confrontation Clause,
ta’s questioning had opened the door to the if they were reliable. Reliability was estab-
evidence. It was admitted to show that Mar- lished by showing that a statement either met
rufo’s trial testimony was not, as Acosta had a “firmly rooted hearsay exception” or bore
suggested, a recent fabrication. “particularized guarantees oftrustworthiness.”
Id. at 66. In Crawford the Court replaced the
Lucero was recalled to testify about state- Roberts standard with a bright-line rule: The
ments Marrufo made during his safety valve Confrontation Clause prohibits the admission
debriefing. Acosta made his first Sixth of an out-of-court testimonial statement unless
Amendment objection at that point, which was the witness is unavailable and the defendant
overruled because the court found that Acosta had a prior opportunity to cross-examine the
had opened the door to the admission of those witness. Crawford, 541 U.S. at 59.
portions of the statements that bore directly on
Marrufo’s cross-examination testimony. On III.
the final day of trial, Acosta made an unsuc- Acosta claims three Confrontation Clause
cessful Sixth Amendment objection to the gov- violations: the government’s questioning of
ernment’s initial questioning of Marrufo. He
was convicted of conspiring to possess with
the intent to distribute, and possession with the 4
“In all criminal prosecutions, the accused shall
intent to distribute, five kilograms or more of enjoy the right . . . to be confronted with the wit-
cocaine, in violation of 21 U.S.C. §§ 846 and nesses against him.” U.S. CONST. amend. VI.
841 (a)(1) and (b)(1)(A)(ii).
5
United States v. Holmes, 406 F.3d 337, 347
II. (5th Cir.) (citing United States v. Cartwright,
The Confrontation Clause of the Sixth 6 F.3d 294, 300 (5th Cir. 1993); FED. R. CRIM. P.
Amendment guarantees the right to confront 52(b)), cert. denied, 126 S. Ct. 375 (2005).
6
United States v. Jimenez, 464 F.3d 555, 558
(5th Cir. 2006) (quoting United States v. Bell, 367
F.3d 452, 465 (5th Cir. 2004)).

3
Marrufo, the admission of the safety valve examine Marrufo about his prior statements.
statement, and Lucero’s testimony about Mar- Each party relies largely on a single case, and
rufo’s statements. We address each in turn. neither case is directly on point.

A. The government relies on In re Brown, 457
Acosta asserts that the government’s ques- F.3d 392 (5th Cir. 2006), for the proposition
tioning of Marrufo about his prior statements, that as long as a witness is available for cross-
during which Marrufo refused to answer some examination Crawford’s requirements are sat-
of the questions, violates the Confrontation isfied. Brown, an eve-of-execution habeas ap-
Clause. Acosta did not object when these peal, found, inter alia, that Crawford does not
questions were asked, so we review for plain apply where cross-examination of a witness is
error.7 “[T]he plain-error exception to the available, even if it is limited. Id. at 395.
contemporaneous-objection rule is to be ‘used Based on this, the government claims that
sparingly, solely in those circumstances in Crawford’s requirements are satisfied if a de-
which a miscarriage of justice would otherwise fendant has at least some ability to cross-ex-
result.’” Id. (quoting United States v. Young, amine.
470 U.S. 1, 15 (1985)).
For two reasons, this imputes a more
Crawford bars the admission of testimonial sweeping interpretation than Brown can bear.
statements unless the defendant had the oppor- First, the Confrontation Clause issue was not
tunity to cross-examine the witness. Though squarely before the Brown court. The court
the Crawford Court did not define “testimo- found three distinct procedural bars to
nial,”8 it listed several examples of statements Brown’s Confrontation Clause claim, and thus
that are testimonial under any definition: “prior even if there had been a Crawford violation the
testimony at a preliminary hearing, before a court was barred from considering it.9 Sec-
grand jury, or at a former trial; and . . . police ond, during the trial Brown was permitted to
interrogations.” Crawford, 541 U.S. at 68. cross-examine the witness on nearly every as-
The government’s questions to Marrufo refer- pect of her testimony; the sole limitation was
enced two prior statements: the factual basis of on the witness’s marital status, which the court
his guilty plea and his safety valve statement. found to be only marginally relevant.10 This is
Both were used at Marrufo’s sentencing pro- unlike Marrufo’s testimony, which goes to the
ceeding, so both are testimonial under Craw-
ford.
9
The court found that (1) Brown had raised the
The next step of the Crawford analysis asks argument in his certificate of appealabilty and thus
whether Acosta had the opportunity to cross- was procedurally barred from raising it in his ha-
beas petition; (2) Brown did not proffer any newly
discovered evidence that was not included in his
7
United States v. Cartwright, 6 F.3d 294, 300 prior claim; and (3) even if his appeal was a proper
(5th Cir. 1993) (citing United States v. Beaumont, Crawford claim, Crawford does not apply retroac-
972 F.2d 91, 95 (5th Cir. 1992)). tively on habeas review. Brown, 457 F.3d at 395.
8 10
“We leave for another day any effort to spell See Brown v. Dretke, 419 F.3d 365, 375-76
out a comprehensive definition of ‘testimonial.’” (5th Cir. 2005), cert. denied, 126 S. Ct. 1434
Crawford, 541 U.S. at 68. (2006).

4
heart of the government’s case. For these rea- the witness did not acknowledge as his own.11
sons, Brown provides little guidance. In contrast, Marrufo admitted making both the
factual basis of his plea agreement and the
Acosta relies on Douglas v. Alabama, 380 safety valve statement. He also testified that
U.S. 415 (1965), in which a convicted defen- his safety valve statement was truthful.
dant was called to testify at his codefendant’s Therefore Acosta could cross-examine him
trial. Because he intended to appeal his con- effectively.
viction, the witness did not answer any ques-
tions, invoking his Fifth Amendment privilege, Second, despite Acosta’s accusations to the
even after the judge ordered him to testify. contrary, Marrufo answered several questions
The prosecutor then introduced an alleged about Acosta’s involvement in the offense.
confession of the witness by reading the con- Marrufo acknowledged that he was a team
fession and periodically asking the witness, driver with Acosta and that Acosta was driv-
“Did you make that statement?” Each time the ing with him in the truck to El Paso to pick up
witness responded by asserting his Fifth a shipment of narcotics and was the only other
Amendment privilege. After the entire docu- person in the truck. These statements alone
ment had been read, the government called could implicate Acosta, because Marrufo was
three law enforcement officers to testify that seen handing the cocaine to someone in the
the statement had been made by the witness. truck, and given that he testified that Acosta
was the only other person in the truck, it could
In Douglas the witness’s testimony consti- be inferred that Marrufo was handing the bags
tuted the only evidence that the defendant had to Acosta. But even without this inference,
committed the crime, and there was no indica- because Marrufo testified about Acosta’s pres-
tion that the witness’s “refusal to answer was ence at the time of the offense, he could be
procured by the petitioner.” Id. at 420. The cross-examined on this testimony.
Court held that, because the witness refused to
answer any questions or to acknowledge mak- Third, Acosta could impeach Marrufo
ing the statement, the defendant had no oppor- about his motives in making his prior state-
tunity to cross-examine the witness about the ments or discredit his testimony by attacking
statement, and thus its admission through the his perceptions during the offense. In fact, this
government’s questions violated the Confron- is exactly what Acosta did when, on cross-ex-
tation Clause. Id. at 419. amination, he impeached Marrufo by suggest-
ing that he had lied in his prior statements be-
The government’s questioning of Marrufo cause he thought that if he implicated Acosta
can be distinguished from the situation in he would receive a more lenient sentence.
Douglas and does not run afoul of the Con- Acosta could have similarly attacked Marru-
frontation Clause, for four reasons. First, fo’s perception of the events leading up to, and
Marrufo admitted making the prior testimonial
statements. One of the bases for the holding in
Douglas was that the witness never admitted 11
“[E]ffective confrontation of [the witness]
making the statement; the defendant could not
was possible only if [the witness] affirmed the
cross-examine the witness about a statement
statement as his. However, [he] did not do so, but
relied on his privilege to refuse to answer.” Doug-
las, 380 U.S. at 420.

5
during, the crime. This is unlike the situation But Marrufo acknowledged Acosta’s pres-
facing the defendant in Douglas, who could ence during the offense and acknowledged
not ask any questions of the non-responsive making the prior statements. Thus, both of
witness. these subjects could be reached on cross-ex-
amination. Acosta made a tactical decision to
Finally, and perhaps most importantly, avoid these questions, and Marrufo answered
Marrufo answered every question he was every question he was asked on cross-exami-
asked on cross-examination. The tactical de- nation. Thus Crawford does not apply.
cision by a defendant to forego cross-examina-
tion does not create a constitutional viola- B.
tion.12 In Crawford, 541 U.S. at 59 n.9, the Next, Acosta objects to the admission of
Court held that “when the declarant appears Marrufo’s written safety valve statement. He
for cross-examination at trial, the Confronta- did not raise this objection at trial, so we re-
tion Clause places no constraints at all on the view for plain error. Holmes, 406 F.3d at 347.
use of his prior testimonial statements . . . . The admission of this statement, however, sur-
The Clause does not bar admission of a state- vives even de novo review, because it was not
ment so long as the declarant is present at trial admitted to establish the truth of the matter
to defend or explain it.” asserted and because Acosta opened the door
to its admission.
On cross-examination Acosta made a tac-
tical decision to refrain from asking Marrufo Under Crawford, 541 U.S. at 59 n.9, the
about the questions he refused to answer on Confrontation Clause does not bar the use of
direct examination and from asking him about testimonial statements for purposes other than
his earlier statements implicating Acosta. As establishing the truth of the matter asserted.
we have explained, Acosta could have probed The district court found that the safety valve
either of these subjects on cross-examination. statement showed that Marrufo’s trial testi-
mony was not a recent fabrication and demon-
These four reasons illustrate the novelty of strated prior inconsistent statements concern-
Acosta’s Crawford claim. Although we do not ing the questions Marrufo refused to answer.
speculate as to hypothetical outcomes, if Mar- The court admitted the statement with the lim-
rufo had steadfastly refused to answer all ques- iting instruction that it was “not being allowed
tions about Acosta’s involvement, had denied into evidence to prove whether the contents of
making the prior statements, and had refused the exhibit are true or not true. In other
to answer questions on cross-examination, we words, it is not being offered to establish the
might face a Crawford problem to which truthfulness of what it says.”
Acosta might be entitled to relief, even under
the imposing plain error standard. In fact, if Juries are presumed to follow limiting in-
Marrufo had refused to answer a single ques- structions. United States v. Bieganowski, 313
tion on cross-examination the Crawford analy- F.3d 264, 288 (5th Cir. 2002). Because the
sis could have been challenging. statement was not admitted to establish the
truth of the matter asserted, it does not contra-
vene Crawford.
12
See, e.g. Lowery v. Collins, 996 F.2d 770,
771-72 (5th Cir. 1993). Even if the statement were not being admit-

6
ted for purposes other than asserting its truth, Marrufo admitted making the statement to
its admission would be permissible, because Lucero. It was materially different for the wit-
Acosta invited the error. If a defendant injects ness in Douglas, who did not acknowledge
otherwise inadmissible evidence, “the defense making the statement attributed to him. Be-
cannot later object to such ‘invited error.’”13 cause Marrufo acknowledged the statement as
In his cross-examination of Marrufo, Acosta his, Acosta could have cross-examined him
made a tactical decision to discredit Marrufo’s about it. See supra Part III.A.
safety valve statement by presenting it as a
concession made to please the government and Lucero’s testimony was limited to topics
asserting that Marrufo was being evasive at Marrufo had testified about earlier in the trial.
trial because he feared a perjury conviction. Marrufo denied stating that he had conspired
This opened the door for the statement’s ad- with Acosta to conceal and deliver the cocaine
mission to rebut the impression that Marrufo’s or that Acosta was involved in the offense.
reluctance to testify was based on a fear that When Lucero was called for redirect and
his statements at trial contradicted an earlier Acosta objected, the court limited the ques-
statement in which he lied to obtain a more tioning “to those issues that [the government]
lenient sentence. specifically addressed Marrufo on.” The gov-
ernment followed these instructions and asked
C. Lucero only about the prior statements of
Finally, Acosta claims that the court vio- Marrufo that contradicted his earlier denial
lated the Confrontation Clause when it permit- that he admitted Acosta was involved.14
ted Lucero to testify about Marruo’s prior
statements. This is the only issue to which
14
Acosta properlyraised a Crawford objection at The government’s short questioning of Lu-
trial, and thus we review de novo. cero on redirect, in its entirety, follows:

Lucero referenced statements Marrufo Q: Agent Lucero, did Mr. Marrufo indicate to
you how he became aware that there was a hid-
made during his safety valve debriefing. These
den compartment located in the tractor that we
statements were made during a police interro- previously discussed?
gation, so they are testimonial. Crawford, 541
U.S. at 53, 68. Lucero’s testimony does not A: Yes, sir.
contravene Crawford, because Marrufo was
available for cross-examination, for three rea- Q: How was that?
sons. First, he admitted having made the state-
ment to Lucero. Second, Lucero’s testimony A: He was made aware by Mr. Robert Acosta.
was limited to those topics about which Mar-
rufo had already testified. Third, even if this Q: Did Mr. Marrufo indicate to you who had
testimony were otherwise inadmissible, Acosta loaded the compartment?
opened the door to its introduction.
A: Yes, sir.

Q: And what did he indicate to you?
13
United States v. Green, 272 F.3d 748, 754
(5th Cir. 2001) (quoting United States v. Raymer, A: He told me that Robert Acosta had loaded
876 F.2d 383, 388 (5th Cir.1989)). (continued...)

7
Because Lucero testified only about topics al-
ready covered by Marrufo, Acosta could have
cross-examined Marrufo on these subjects.

Finally, Acosta opened the door. During
his cross-examination of Marrufo, Acosta im-
peached Marrufo’s credibility by showing that
Marrufo stood to gain from implicating Acos-
ta. Acosta thus implied that Marrufo’s reluc-
tance to testify was driven by a fear of perjur-
ing himself or contradicting his earlier state-
ments to police. This opened the door for the
government to introduce evidence showing
that Marrufo’s trial testimony was not a recent
fabrication. Even if the questions to Lucero
were not otherwise admissible, they could be
admitted to rebut Acosta’s insinuations.

AFFIRMED.

14
(...continued)
the compartment.

Q: Did Mr. Marrufo indicate anything to you
regarding whether or not gloves could be used
to handle narcotics to avoid fingerprints?

A: Yes, sir, he did.

Q: And what did he tell you?

A: He told me that they were going to use
gloves to handle the bundles.

Q: Did Mr. Marrufo indicate anything to you
regarding whether he and Mr. AcostaSSand this
particular statement I am talking about before
the events that occurred on November 10 of
2004SSof whether they thought they would get
caught if they engaged in this venture?

A: Mr. Marrufo stated that based on how well
the hidden compartmentSShow well it was hid-
den, that they wouldn’t be caught.

8