* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50477

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO HERNANDEZ-FLORES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas, El Paso

(EP-94-CR-275-1)

_________________________________________________________________

June 26, 1997

Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIUM: *

Sergio Hernandez-Flores was convicted of kidnaping a

nine-year-old girl. He was also convicted of violating the Mann

Act by taking the child from El Paso, Texas, to Mexico with the

intent to engage in criminal sexual behavior. He was sentenced to

life imprisonment for kidnaping and 99-years of imprisonment for

the Mann Act violation. Hernandez challenges both his convictions

and his sentences. He first contends that the district court

improperly denied his request for a continuance of the trial after2

a defense witness became unavailable to testify. He also maintains

that he was denied the opport unity to cross-examine adequately a

prosecution witness who received favorab l e treatment from the

government, possibly in exchange for his testimony. Finally,

Hernandez challenges the sentences assessed for both convictions.

We hold that Hernandez was properly convicted of both crimes.

Although he was properly sentenced for kidnaping, his s entence

under the Mann Act exceeded the statutory limits.

I

In January 1994, Hernandez, his wife, and children moved into

a trailer in El Paso, Texas, next to the Zavala family. The

victim, Maria Zavala, became friends with the Hernandez children,

and often played in Hernandez’s trailer. On February 19, 1994,

Maria's mother allowed her to walk with the Hernandez family to a

local grocery store. Instead of going to the grocery store,

however, Sergio Herna ndez took his family and Maria into Mexico.

Once in Mexico, they boarded a train bound for the country’s

interior. Hernandez lied to both Maria and his common-law wife,

t elling them that they were heading back to El Paso. Maria told

Hernandez that she wanted to return home several times during this

trip.

The group remained in Mexico for over five months. During

this time, Hernandez repeatedly beat and raped Maria. He also beat

and threatened his pregnant wife. Eventually, unable to find work

in Mexico, Hernandez took his family and Maria back to the United3

Sta tes. They were detained by immigration officials in Tucson,

Arizona. Maria told an immigration officer that she had been

kidnaped, beaten, and sexually abused.

Hernandez and his common-law wife were charged with kidnaping

and transportation of a minor in foreign commerce with the intent

that the minor engage in unlawful sexual activity in violation of

the Mann Act.

Shortly before the April 15 trial, Hernandez made a motion for

continuance, contending that one of his witnesses was unavailable

to testify. The motion for continuance was denied, and Hernandez

was tried and convicted on both counts, and sentenced to life

imprisonment on the kidnaping count, and to 99 years imprisonment

for the Mann Act offense.

II

The defendant contends that the distri ct court improperly

restricted his cross-examination of Martin Zavala, Maria's father.

Hernandez contends that Mr. Zavala had strong motivation to testify

on behalf of the government: He had recently been charged with an

felony, for which he could have received over five years

imprisonment. Instead, it appears that the charges against him

were dropped. Moreover, one of prosecutors helped him remain in

the country legally, and helped him find a job. Although Hernandez

w as allowed to cross-examine the witness about his criminal

history, and the fact that the prosecution had helped him find a

job, the district court stopped questions regarding the severity of4

the sentence the father was facing, and whether he had entered into

a formal plea agreement.

The district court ha s broad discretion in restricting the

scope of cross-examination. U nited States v. Fortna

, 796 F.2d 724,

734 (5th Cir. 1986). Nonetheless, this court has recently noted

that "[a]lthough the district court retains its broad discretion to

prevent repetitive and unduly harassing interrogation, a witness's

possible bias es, prejudices, or 'motivation' are 'subject to

exploration at trial, and [are] always relevant as discrediting the

witness and affecting the weight of his testimony.'" U nited States

v. Alexius

, 76 F.3d 6 42, 645 (5th Cir. 1996), quoting D avis v.

Alaska , 415 U.S. 308, 315, 94 S.Ct. 1105, 1110 (1974).

Because he was facing criminal prosecution, Maria's father had

an incentive to provide favorable testimony on behalf of the

government. Without deciding if the district court erred by

cutting short this cross-examination, we find that any error that

may have occurred was harmless. D elaware v. Van Arsdale

, 475 U.S.

673, 673-76, 106 S.Ct. 1431, 143 2-33 (1986)(Sixth Amendment

v iolation should be reviewed under harmless error standard). An

error is harmless if it is clear beyond a reasonable doubt that it

did not c ontribute to the verdict obtained. A lexius

, 76 F.3d at

646. There is no doubt that the testimony offered by Martin Zavala

did not affect the jury’s verdict.

First, although the defendant did not examine Zavala regarding

the existence of a plea agreement, he did introduce the fact that5

one of the prosecutors in the case arranged for Zavala to live and

work legally in the United States. Therefore, the jury was

informed that the witness had a motive to give favorable testimony

for the government. Moreover, as the father of the victim, the

witness had the strongest ince ntive to help the prosecution

incarcerate the person he believed victimized his daughter. No

doubt this fact was not lost on the jury.

Second, the government’s case against Hernandez was

compelling. Martin Zavala’s testimony provided the prosecution no

real assistance in proving the elements of the crimes.

The evide nce that Maria was sexually molested in Mexico is

overwhelming. Dr. Azalia Martinez conducted a physical examination

of Maria after she had returned from Mexico. He testified at

length about the evidence of abuse he discovered while examining

Maria. The doctor testified that Maria showed many signs of

extreme physical and sexual abuse . Graphic photographs were

introduced into evidence, as sisting the doctor's testimony, and

showing the jury the physical manifestations of the abuse. He

testified that "[i]t was obvious that this child had been abused."

The doctor dramatically concluded tha t having performed over 350

examinations of female children "Maria was the worst case I've seen

of child abuse." This testimony presented exceptionally strong

evidence that Maria had suffered sexual abuse.

The victim's testimony was also damning. Maria testified that

in Mexico the defendant fondled her and forced her to have6

specifically described forms of intercourse. She also testified

that the defendant beat her with a water hose.

Maria's mother also t estified. She began her testimony by

describing Maria's home life, tel ling the jury about Maria's

brothers, sisters and father. She testified that Maria was a smart

child and a good student. She told the jury about the day Maria

disappeared, how she began to worry when Maria did not return, and

how she se arched for her child, before contacting the sheriff's

office to get help. She also testified about receiving a telephone

call from Maria, after Maria was safe in the border patrol's

custody, and how she began to cry after hearing her daughter's

voice . The jury also learned that Maria displayed inappropriate

sexual behavior after returning from Mexi co, and would "show her

private parts" when "she wanted money."

These three witnesses provided the critical testimony in this

case. The doctor's testimony established beyond any doubt, that

Maria had been subjected to extreme abuse. Maria herself

identified Hernandez as her attacker. No doubt, the jury's

sympathy and empathy for the victim was enhanced by being able to

see her in the courtroom. Finally, Maria's mother provided another

glimpse in to the damage done by the defendant in this case by

providing a view of a grieving parent. She also reinforced that

Maria had been abused in Mexico by telling the jury how Maria acted

inappropriately after being returned home.7

Upon this backdrop, the testimony of Maria' s father must be

examined. Martin Zavala testified that he had a very close

relationship with his daughter, despite being in prison during much

of Maria's childhood. This testimony added little to that given by

Maria's mother, at most showing that the father loved his daughter.

Zavala further testified that Maria had changed after

returning from Mexico. Initially, the father's testimony only

reinforced that given by Maria's mother:

Q: Was Maria showing unusual sexual behavior since she

came back from Mexico.

A: Yes.

Q: What was she doing?

. . . A: I didn't see anything. It's just that her mother says

that -- what she used to do, that she would do to me.

Q: In other words, what s he used to do in Mexico, she

would do to her mother; it that correct?

. . . A: Yes.

The father also testified that the neighbors had complained

that "my little girl, Maria, and another on e, they were doing --

they were doing [sexual] things with other boys that were younger."

He testified that before going to Mexico, Maria was "ignorant" of

"sexual things."

At best, the father's testim ony only supported the mother's

testimony, showing that Maria had been sexually molested in Mexico.

This testimony is inconsequential compared to the doctor's

testimony, which demonstrated in the most graphic terms that Maria8

was abused, and Maria's testimony, in which she described how

Hernandez beat and raped her.

Finally, Hernandez argues that the fat her was able to

"personalize" Maria for the jury. Maria’s mother also testified

about Maria's home life, giving the same type of testimony as Mr.

Zavala. Moreover, Maria testified at the trial, "personalizing"

herself; no doubt her father's testimony added little on this score

as well. Because her father’s testimony was merely cumulative, any

error in not allowing more extensive cross-examination was

harmless.

III

Hernandez next contends that the district court committed

reversible error by refusing to grant his motion for continuance.

Hernandez contends that he intended to call as a witness Jorge

Ortiz-Contreras, a store clerk and an unofficial justice of the

peace from Mexico. Ortiz was to testify that on three occasions he

had seen Maria alone, that she seemed happy, and she never asked

for help.

Five days before his trial was to begin, Hernandez learned

that Ortiz could not attend the April 15 trial. Ortiz had notified

the defense attorney that his mother had become ill and he needed

to re main in Mexico for up to thirty days to care for her, but

would be able to travel to the United States if the trial was

postponed for thirty days.9

Before a continuance must be granted to allow a defendant to

secure a witness’s testimony, the defendant must prove that: (a)

due diligence has been exercised to obtain the wi tness’s

att endance; (b) the witness would tender substantial favorable

evidence; (c) the witness is available and willing to testify; and

(d) the defendant would be materially prejudiced by the denial.

United States v. Rodriguez

, 15 F.3d 408, 411 (1994); United States

v. Walker

, 621 F.2d 163, 168 (5th Cir. 1980). A grant or denial of

a continuance is reviewed only for an abuse of discretion. U nited

States v. Alexander

, 689 F.2d 808 (5th Cir. 1989). Reversal is

required only if a defendant shows that the denial of a continuance

seriously prejudiced his case. U nited States v. Webster

, 734 F.2d

1048, 1056 (5th Cir. 1984).

Our review of the record shows that Hernandez exercised due

diligence in obtaining the witness’s attendance. Furthermore,

there is sufficient e vidence from which the district court could

have conclude d that the witness was willing and available to

testify. Nonetheless, Hernandez failed to show that the witness

was going to present “substantial favorable testimony,” and he was

not materially prejudiced by the denial of the continuance.

Hernandez failed to show that his witness would provide

substantial favorable evidence. The trial court was provided with

an affidavit by Roberto Villa, the investigator who had traveled to

Mexico and talked with Ortiz. Villa swore that Ortiz would testify

that on t wo occasions Maria came to his store alone to purchase10

food; that Maria appeared to be h appy and showed no signs of

physical or emotional abuse; that he had seen Maria play with other

children in the village; that he had traveled to Hernandez’s home

and had seen Maria outside playing with the Hernandez children, and

that neither Hernandez nor his common-law wife was home at that

time; and, finall y, that he would testify that he served as an

"alcalde," or unofficial justice of the peace of the community--a

position that requires him to contact law enforcement officials in

the event he observed criminal activity in the village.

The government introduced specific evidence, which was not

contradicted, that Maria did not want to leave El Paso, and that

she c ontinually protested being taken. There was uncontradicted

evidence that Hernandez took Maria to Mexico with the intention of

sexually abusing her, and that he carried out his perverted plan.

Ortiz’s testimony could not have undermined any o f this evidence

and testimony. Evidence that a young child did not escape is of

little probative quality when that child has been taken into the

interior of a foreign country, told that her parents did not love

her, and that t hey were not her “real” parents. Because Ortiz

could not have provided Hernandez “substantial favorable

testimony,” the district court did not abuse its discretion in

denying his continuance motion.

IV

Hernandez contends the prosecution failed to prove the conduct

charged in the Mann Act indictment. The indictment provided: "On1 Section 2423 of the Mann Act provides:

2423. Transportation of minors

(a) Transportation with intent to engage in criminal

sexual activity.--A person who knowingly transports any

individ ual under the age of 18 years in interstate or

foreign commerc e, or in any Territory or Possession of

the United States, with intent that su c h individual

engage in prostitution, or in any sexual activity for

which any person can be charged with a criminal offense,

shall be fined under this title or imprisoned not more

than ten years, or both.

(b) Travel with intent to engage in sexual act with a

juvenile.--A person who travels in interstate commerce,

or conspires to do so, or a United States citizen or an

alien admitted for permanen t residence in the United

States who travels in foreign commerce, or conspires to

do so, for the purpose of engaging in any sexual act (as

defined in section 2246) with a person under 18 years of

age that would be in violation of chapter 109A if the

sexual act occurred in th e special maritime and

terri torial jurisdiction of the United States shall be

fined under this title, imprisoned not more than 10

years, or both.

11 or about Febr uary 18, 1994 . . . the Defendant . . . knowingly

transported [a minor child], in foreign commerce, from El Paso

County, Texas, to Mexico, with the intent that such juvenile would

engage in sexual activity that would constitute, in the State of

Texas, the criminal felony offense of Aggra vated Sexual

Assault

. . . ." 1 Hernandez maintains that at most, the

prosecution proved that he raped the victim while in Mexico, and

therefore it was not shown that he could have been charged with

violating the Texas Aggravated Sexual Assault statute . This

contention is without merit.2 In his closing statement the prosecutor noted:

Remember when [Hernand ez' common-law wife] was on the

witness stand and she testified [that Hernandez had told

her] "Do not butt it. I planned this. This is my plan.

I ex ecuted this. I've been m anosiendo la

. [handling

her] I've been fondling the child since we were in El

Paso." That's how we know what his intent was.

His intent came all the way back to February 18th and

prior to that date. The entire time he was enticing this

child . . . .

In addition, the defense attorney emphasized that to convict

the defendant, the government needed to show that criminal intent

had been formed in the Texas:

Certain mental activities had to take place in this

country before an ything at all happened in Mexico, and

you will come across the words "willful ly" and

"intentionally" and "purpose," you know, all these words

relate to certain mental states, intentional states that

have to take place in the United States of America.

12 Section 1.04(a)(1) of the Texas Penal Code provides that the

Texas courts have jurisdiction over criminal conduct if an element

of the offense occurs in the State. There is no doubt that the

jury found that the intent to commit the aggravated sexual assault

was for med in Texas; both the prosecution and the defense

emphasized to the jury that they could only convict if Hernandez

formed his criminal intent in Texas. 2 There was ample evidence to

support this conclusion: In Texas, Hernandez lured Maria over to

his tra iler, giving her candy, and winning her trust. He also

began to fondle Maria in Texas. After executing his plan to kidnap

Maria and take her to Mexico, Hernandez raped her.13

The record theref o re supports the jury’s conclusion that

Hernandez formed the intent to rape Maria while in Texas, and that

he could therefore have been charged with criminal sexual assault

in Texas. Thus, the prosecution proved the offense stated in the

indictment.

VI

Hernandez contends that the district court erroneously applied

multiple adjustments to his sentence for kidnaping. When reviewing

a distr ict court's application of the United States Sentencing

Guidelines, this court will reverse factual findings only if they

are "clearly erroneous." U nited States v. Paulk

, 917 F.2d 879 (5th

Cir. 1990). The trial court's conclusions of law are reviewed de

nov o

. United States v. Suarez , 911 F.2d 1016, 1018 (5th Cir.

1990).

Hernandez first contends that the upwa rd adjustment under

section 2A3.1(b)(4)(A) was erroneous. This section provides for a

four-level adjustment if a v ictim "sustained permanent or lifethreatening bodily injury." The definition of "permanent or lifethreatening bodily injury" is "injury involving a substantial risk

of death; loss or substantial impairment of the function of a

bodily member, organ, or mental faculty that is likely to be

permanent; or an obvious disfigurement that is likely to be

permanent." U.S.S.G. § 1B1.1(h).

Hernandez presented no swo rn testimony to rebut the

presentencing report. A PSI has the presumption of reliability.14

United States v. Alfaro , 919 F.2d 962, 966 (5th Cir. 1990). A

defendant's unsworn objections are not evidence considered by this

court in revie wing a district court's factual findings. I d. A

therapist's letter that was attached as an addendum to the PSI

report noted that Maria had suffered "permanent psychological harm

and will need long term counseling." This conclusion is supported

by the extent of the ordeal Maria suffered. Therefore, the court

did not err in imposing a four-level adjustment.

Hernandez also contends that he should not have been subjected

to a two-level adjust ment under Section 2A3.1 of the sentencing

guidelines. A two-level adjustment is appropriate "whenever the

victim is entrusted to the defendant, whether tempora rily or

permanently. For example, teacher s, day care providers, baby

sitters, or other temporary caretakers are among those who would be

subject to this enhancement." U.S.S.G. Application Note 3.

Hernandez maintains that Maria was not entrusted to the him:

he notes that he “never spoke to Patricia [Maria's mother], much

less asked permission or volunteered to supervise Maria." The

guidelines, how ever, do not require that a defendant expressly

agree to care for the victim. Instead, the facts must be examined

to determine realistically whether the defendant had been entrusted

with the care of the victim. In doing so, the evidence clearly

demonstrates that Hernandez took custody of Maria. First, Maria

testified that Hernandez wanted her to accompany him to the store.

This test imony was corroborated by Hernandez’s common-law wife.15

Sec ond, Maria had accompanied Hernandez to the store on several

other occasions. When a nine-year-old child travels to a store in

the company of an adult, with the permission of the child's parent,

the adult has assumed a duty of care over the child--he has been

entrusted with the child' s well-being. Therefore, the district

court's conclusion that Hernandez had been entrusted with Maria's

care was not erroneous.

Hernandez finally contends that there is no evidence that he

abducte d Maria against her will, and therefore, the four-level

adjustment imposed pursuant to U. S.S.G. § 2A3.1(b)(5), which

provides that an upward adjustmen t is appropriate if the "victim

was abducted," was not appropriate. This guideline The commentary

clarifies that "abducted" means the victim was "forced to accompany

an offender to a different location."

Hernandez contends that because Maria wanted to go to the

local store with him, he did not abduct her. The PSI relied upon

the fact that Hernandez brought Maria into Mexico without her

parents' consent, not that he merely brought her to a local store.

There is ample evidence that although M aria agreed to accompany

Hernandez to the store, she did not agree to go to Mexico. Maria

repeatedly requested to be taken home. Instead, of honoring these

requests, Hernandez lied to Maria, telling her that he was taking

her home, when in fact he was taking her into the heart of Mexico.

These factors are sufficient to allow the district court to16

conclude that Maria had been abducted. In sum, the district court

properly sentenced Hernandez to life imprisonment for kidnaping.

VII

The government concedes that the district court erred when it

sentenced Hernandez concurrently to 99-years of imprisonment for

his violation of the Mann Act. The Mann Act carriers a statutory

maximum sentence of ten years. Hernandez’s sentence for violating

the Mann Act is therefore reduced to ten years imprisonment, to run

concurrently with his sentence of life imprisonment for kidnaping.

In all other respects the district court is

A F F I R M E D.