United States Court of Appeals Fifth Circuit 

## FILED January 9, 2007 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 05-51691

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,

VERSUS


### R OBERT 

### A COSTA 

### , Defendant-Appellant.

_________________________ Appeal from the United States District Court fo r the Western District of Texas 

### m 3:04-CR-2698-2

______________________________

Before S MITH , B ENAVIDES , and P RADO , Circuit Judges.
J ERRY E. S MITH , Circuit Judge:
Robert Acosta claims a vio lat io n of his Sixt h Amendment right to confront a hostile wit ness. We affirm.
I. While conducting routine surveillance at an El Paso truck stop, pol

ice of ficer Jose Lucero observed a car wit h Chihuahuan license plates

pull up to an empty flat bed truck. 1 Juan Marrufo exited the car’s passenger seat, and he and the driver o f t he car unloaded two large bags from the car and handed them to someone inside the truck. The two then re-entered

1 Chihuahua is a state of Mexico. Lucero testified that this was significant because of the high num ber of drug arrests involving cars with Chihuahuan license plates.2

th e car and drove to the truck stop’s convenience store. Lucero followed and observed Marruf o enter the store, after which the car left th e truck stop. Suspecting narcotics smug gling, Lucero requested assistance from border patrol agent Gilbert Almanza, who arrived approximately fift een minut es lat er. The two of ficers observed Marrufo leave the store and enter th e cab of th e truck to which he had earlier delivered the two bags.
The of ficers approached the truck and displayed th eir pol

ice credentials. Marrufo was in th e driver’s seat and consented to a search of th e truck, dur i ng which Almanza’s canine alerted to the presence of narcotics. Marrufo summo ned Aco sta, who exited the truck’s sleeper com

partm ent. A hidden compartment was discovered th at contained fo rty bundles of cocaine weighing just over eighty -six pounds and worth approximately $500,000.
Before Acosta’s tri al, Marrufo ple aded guilty

. In addition to providing a statem ent articulating th e factual basis of his guilt y plea, Marrufo made an additional statem ent t o qual

ify fo r a “safety valve” sentence reduction: He said he had been employ ed in June by the trucking com

pany owned by Acosta’s brother and had driven fo r th e com pany wit hout incident until October, when Acosta approached him wit h th e proposition of making additional mo ney by smuggling cocaine. Initially hesit a nt , Marrufo agreed when Acosta demonstrated th e sophistication of th e truck’s hidden com partm ent.
Aft er Marrufo agreed to help smuggle cocaine, he was assigned to drive wit h Acosta to El Paso. At th e truck stop they were called, as planned, wit h inst ructions fo r picking up the drugs. Marrufo met the courier, whom he did not know, and helped transfer two large bags of cocaine from the courier’s car to Acost a, who was waiting in the truck’s cab. Marrufo purchased a wrench fr om the convenience store, which Acosta used to open the compartment where th e drugs were concealed. The two were arrested shortl

y t hereafter.
Marru fo was called as a government wit

ness at Acosta’s tri al. Before testifying, he appeared o utside the jury’s presence and info rm ed the court that, because he feared for the safety of his family, he did not want to testify. Alt hough he did not st ate the source of h is fear, it appeared, and the court inf erred, th at it was because of th reats from A costa. The court ordered Marrufo to testify, had Acosta confined fo llo wing th at day’s proceedings, and had Acosta’s com munications mo nitored.
Marrufo testified th at he was a team driver wit h Acosta and th at the purpose of their visit to the truck stop was to pick up cocaine. He said Acosta was the only other person in t he truck. Aft er answering quest io ns about his own invo lvement in the of fense, he refused to answer several questions about Acosta’s direct participation in the crime. 2 Several of these questions referenced Marrufo’s safety valve statem ent and the statem

ent that was the factual basi s of his guilty plea. 3 Acosta did not object to the questions.

2 Marrufo refused to answer, inter alia , who in the truck received the bags of cocaine fr om him, whether he discussed the cocaine with Acosta, whether Acosta show e d him the hidden compartment, and whether Acosta knew about the plan to pick up the cocaine.

3 An example is the following: “You stated in that statement that when we got to the tractor, we took the bags with cocaine out of the car, and I handed them to Robert. You said that in your statement, didn’t you?”3

On cross-examination Marrufo did not refuse to answer any of Acosta’s questions. Acosta probed Marrufo’s mo tives in making his prior statem

ents. Acosta elicited testimo ny , over the governm ent’s objection, that Marrufo had believed that he would receive a mo re lenient sentence if he implicat ed Acosta. The court fo und th at Acosta’s questioning was designed to impeach Marrufo by illust rating a motive to lie. Marrufo was not cross-examined about th e portions of his prior statem ents th at implicat ed Acosta.
The government mo ved to admit Marrufo’s safety valve statem

ent, and th e court admit ted it wit h a limit ing inst ruction, finding th at Acosta’s questioning had ope n ed th e door to the evidence. It was admitted to show that Marrufo’s tri al testimo ny was not, as Acosta had suggested, a recent fabrication.
Lucero was recalled to testify about statement s Marrufo made during his safety valve debriefing. Acosta made his first Sixth Amendment objection at th at point , which was overruled because th e court fo und th at Acosta had opened th e door to th e admission of th ose portions of th e statem

ents th at bore directly on Marrufo’s cr o ss-examination testimo ny. On th e final day of tri al, Acosta made an unsuc
cessful Sixt h Amendment objection to the government’s init ial questioning of Marrufo. He was convicted of consp ir ing to possess with th e int ent to distribute, and possession wit h the int ent to di stri

bute, five kilo grams or m ore of cocaine, in violation of 21 U.S.C. §§ 846 and 841 (a)(1) and (b)(1)(A)(ii).

II. The Co n frontation Clause of th e Sixt h Amendm ent guarantees the right to confront hostile wit nesses. 4 We review, for plain error only, any Confr ontation Clause issues that were not contem

poraneosly raised at tri al. 5 Confrontat i on Clause objections th at were properl y raised at tri al are reviewed de novo , subject to harmless error analysis. 6
I n Craw ford v. Washington , 541 U.S. 36 (2004), the Court fundam entally alt ered the role of the Confrontation Clause. Twenty -four years before Craw

ford , the Court collapsed the Confrontation Clause int o the hearsay rules of the Federal Rules of Evidence in Ohio v. Roberts , 448 U.S. 56 (1980), holding that statement s of unavailable wit nesses could be admit

ted, consistent wit h the Confrontation Clause, i f they were reliable. Reliabilit y was established by showing th at a statem ent eit her met a “firmly rooted hearsay except i on” or bore “particularized guarantees of trustworthiness.” Id. at 66. In Craw

ford the Court replaced the Roberts standard wit h a bright-line rule: The Confrontation Clause prohibi t s the admission of an out-of

-court testimo nial statem

ent unless the wit ness is unavailable and the defendant had a prior opportunity to cr oss-exam ine t he wit ness. Craw

ford , 541 U.S. at 59.
III. Acosta claims th

ree Confrontat io n Clause vio lat io ns: the government’s questioning of

4 “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. C ONST . am end. VI.

5 United States v. Holmes , 406 F.3d 337, 347 (5th Cir .) (citing U

nited States v. Cartwright , 6 F.3d 294, 300 (5th Cir. 1993); F ED

. R. C RIM

. P. 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)).4

Marruf o, the adm

issio n of the safety valve statem ent, and Lucero’s testimo ny about Marrufo’s statements. We address each in turn.

A. Acosta asserts th at th e government’s questioning of Marrufo about his prior statem ents, during which Marrufo refused to answer som e o f th e questions, vio lat es th e Confrontation Clause. Aco sta did not obj ect when these questions were asked, so we re view for plain e rror. 7 “[T]he plain-error exception to the contem poraneous-objection rule is to be ‘used sparingly, solely in t hose circumstances in which a miscarriage ofjustice would otherwise result.’” I d. (quoting United States v. Young , 470 U.S. 1, 15 (1985)).
Craw ford bars th e admission of testimo nial statem ents unless th e defendant had th e opportunity to cross-exam

ine t he witness. Though th e Craw ford Court did not define “testimonial,” 8 it list ed several examples of statements th at are testimo nial under any definit io n: “prior testimo ny at a preliminary hearing, before a grand jury, or at a former trial; and . . . police int errogatio ns.” Craw

ford , 541 U.S. at 68. The government’s questions to Marrufo referenced two prior statem

ents: th e factual basis of his guilt y plea and his safety valve statem ent. Both were used at Marrufo’s sentencing proceeding, so both are testimo nial unde r Craw ford

. The next step of th e Craw

ford analysis asks whether Acosta had the opportunity to crosse xamine Marrufo about his prior statements. Each party relies largely on a single case, and neit her case is directly on point.
The government relies on In re Brow n , 457 F.3d 392 (5th Cir. 2006), fo r the prop osi ti on th at as lo ng as a wit ness is available fo r crossexaminat io n Craw

ford ’s requirements are satisfied. B row

n , an eve-of-execution habeas appeal, fo und, inter alia , th at Craw ford does not apply where cross-examination of a wit ness is available, even if it is limit ed. I d. at 395. Based on th is, the government claims that Craw ford ’s requirements are satisfied if a defendant has at least som

e abilit y to cross-examine.
For two reasons, th is imput es a more sweeping interpretation than Brow n can bear. First, the Confrontation Clause issue was not squarely before the Brown court. The court fo und th ree distinct procedural bars to Brown’s Confrontation Clause claim, and thus even if there had been a Craw ford vio lat io n the court was barr ed from considering it. 9 Second, during the tri al Brown w as perm it ted to cross-examine the witness on nearly every aspect of her testimo ny; t he sole limit ation was on the wit ness’s marit al status, which the court fo und to be only marginally relevant. 10 This is unlike Marrufo’s testimo ny, which goes to the

7 United States v. Cartwright , 6 F.3d 294, 300 (5th Cir. 1993) (citing United States v. Beaumont , 972 F.2d 91, 95 (5th Cir. 1992)).

8 “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’” Crawford , 541 U.S. at 68. 9 The court found that (1) Brown had raised the argument in his certificate of appealabilty and thus was procedurally barred from raising it in hi s habeas petition; (2) Brown did not proffer any newly discovered evi dence that was not included in his prior claim; and (3) even if his appeal was a proper Crawford claim, Crawford does not apply retroactively on habeas review. Brown , 457 F.3d at 395.

10 See Brown v. Dretke , 419 F.3d 365, 375-76 (5th Cir. 2005), cert. denied , 126 S. C t. 1434 (2006).5

heart of th e government’s case. For these reasons, Brow

n provides little guidance.
Acosta relies on Douglas v. Alabama , 380 U.S. 415 (1965), in which a convicted defendant was called to testify at his codefendant’s tri al. Because he intended to appeal his convict io n, the witn ess did not answer any questions, invo king his Fift h Amendment privilege, even aft er th e judge ordered him t o testify. The prosecutor th en int roduced an alleged confession of th e wit ness by reading the confession and periodi cally asking t he witness, “Did yo u make th at statem ent?” Each time the wit ness respon ded by asserting his Fifth Amendment privilege. Aft er the entire document had been read, the government called th ree law enforcement of

ficers to testify that th e statem

ent had been made by the witness.
In Douglas th e wit ness’s testimo ny constituted th e only evidence th at th e defendant had com mit ted th e crime, and th ere was no indication that the witness’s “refusal to answer was procured by th e peti

ti oner.” I

d. at 420. The Court held th at, because th e wit ness refused to answer any questions or to acknowledge making th e statem

ent, th e defendant had no opportunity to cross-examine th e witness about the statem ent, and thus it s admission through the government’s questions vio lat ed th e Confrontation Clause. Id. at 419.
The government’s questioning of Marrufo can be distinguished from th e sit uation in Dougl as and does not run afoul of the Confrontation Clause, fo r f

our reasons. Fi

rst, Marrufo admit ted making th e prior testimo nial statem ents. One of the bases for the holding in Dougl as w as th at th e wit ness never admit ted making th e statem

ent; th e defendant could not cross-examine th e wit ness about a statement the wit ness did not acknowledge as his own. 11 In contrast, Marrufo admit ted making both the factual basis of his plea agreeme nt and the safety valve statem

ent . He al so testified t hat his safety valve statem ent was tru t hful. Therefore Aco sta could cross-examine him effectively. Second, despite Acosta’s accusations to the contrary , Marrufo answered several questions about A costa’s involvement in the offense. Marrufo acknowledged th at he was a team driver wit h Acosta and that Acosta was driving wit h him in the truck to El Paso to pick up a shipment of narcotics and was the only other person in the truck. These statements alone could implicat e Acosta, because Marrufo was seen handing the cocaine to som eone in t he truck, and given th at he t esti fied that Acosta was the only other person in the truck, it could be inferred th at Marrufo was handing the bags to Acosta. But even without this inference, because Marrufo testified about Acosta’s presence at the time o f t he offense, he could be cross-examined on this testimony. Third, Acosta could impeach Marruf o about his mo tiv es in making his prior statement s or di scredit his testimony by attacking his perceptions during the of fense. In fact, this is exactly what Acosta did when, on cross-examinat io n, he impeached Marrufo by suggesting t hat he had lied in his prior statements because he th ought th at if he implicat ed Acosta he would receive a mo re lenient sent ence. Ac osta could have similarly at tacked Marrufo ’s perception of the events leading up to, and

11 “[E]ffect i ve confrontation of [the witness] was possible only if [the witness] affirmed the statement as his. However, [he] did not do so, but relied on his privilege to refuse to answer.” D ouglas , 380 U.S. at 420.6

during, the crime. This is unlike th e situation facing th e defe ndant in D ouglas , who could not ask any que stions of the non-responsive wit ness. Finally, and perhaps mo st impo rtantl y, Marrufo answered every question he was asked on cross-examination

. The tactical decisio n by a defendant to fo rego cross-examination does not c reate a consti tutional violatio n. 1 2 In Craw

ford , 541 U.S. at 59 n.9, the Court held th at “when th e decl arant appears fo r cross-exam

inat io n at tri al, the Confrontation Clause places no constraints at all on the use of his prior testimo nial statem ents

. . . . The Clause does not bar admission of a statement so lo ng as th e declarant is present at tri al to def end or explain it.”
On cross-examination Acosta made a tactical de c isio n to refrain from asking Marrufo about th e question s he ref used to answer on direct examinat io n and from asking him about his ear lier statements implicating Acosta. As we have explained, Acosta could have probed eit her of these subjects on cross-examination.
These fo ur reasons illust rate th e novelty of Acosta’s Craw

ford claim. Alt hough we do not speculate as to hypothetical outcom es, if Marrufo had steadfastly refused to answer all questions about Acosta’s invo lvement , had denied making the prior statements, and had refused to answer questions on cross-examination, we might face a C raw

ford problem to which Acosta might be entitled to relief, even under th e impo sing plain error standard. In fact, if Marrufo had refused to answer a single question on cross-examination th e Craw ford analysis could have been challenging. But Marrufo acknowledged Acosta’s presence during the o f

fense and acknowledged making the prior statem

ents. Thus, both of these s u bjects could be reached on cross-examinat io n. Acosta made a tactical decision to avoid these questions, and Marrufo answered every question he was asked on cross-examination. Thus Craw

ford does not appl

y.
B. Next, Acosta objects to the admission of Marrufo’s written safety valve statement. He did not raise this objection at tr ial, so we review fo r plain error. H

olmes , 406 F.3d at 347. The admission of this statem ent, however, survives even de novo review, because it was not admit ted to estab lish t he truth of the matter asserted and because Acosta opened the door to i ts adm issio n. Under Craw

f ord , 541 U.S. at 59 n.9, the Confrontation Cl ause does not bar the use of testimo nial statem

ents fo r purposes other th an establishing the truth of the mat ter asserted

. The district court f

ound that the safety valve statem ent showed th at Marrufo ’s tri al t esti

mo ny was not a recent fabrication and demonstrated prior inconsistent statements concerning the questions Marrufo refu sed to answer. The court admit ted the statem ent wit h the limit ing inst ruction th at it was “no t being allo wed int o evidence to prove whether the contents of th e exhibit are true or not true. In other words, it is not being of

fered to establish the truthfulness of what it says.”
Juries are presumed to fo llo w limit ing instructions. U

nited States v. Bieganow

ski , 313 F.3d 26 4, 288 (5th Ci

r. 2002). Because the statem ent was not admit ted to establ ish t he truth of the mat ter asserted, it does not contravene Craw

ford

. Even if the statem

ent were not being admit

12 See, e.g. Lowery v. Collins , 996 F.2d 770, 771-72 (5th Cir. 1993).7

ted fo r purposes oth er th an asserting it s truth, it s admission would be permissible, because Acosta invit ed th e error. If a defendant injects oth erwise inadmissible evidence, “t he defense cannot lat er objec t to such ‘invit ed error.’” 1 3 In his cross-examination of Marrufo, Acosta made a tactical decision to discredit Marrufo’s safety valve statem

ent by presenting it as a concession made to please th e government and asserting that Marrufo was being evasive at tri al because he feared a perjury conviction. T h is opened th e door fo r th e statem ent’s admissio n to rebut th e impression th at Marrufo’s reluctance to t estify was based on a fear that his statem

ents at tri al contradicted an earl i er statem ent i n which he lied to obtain a more lenient sentence.
C. Finally, Acosta claims th at th e court violat ed th e Confrontation Clause when it permitted Lucero to testif

y about Marruo’s prior statem ents. This is the only issue t o which Acosta properl

y raised a Craw

ford objection at tri al, and thus we review de novo

. Lucero referenced statem ents Marrufo made during his safety valve debriefing. These statem ents were made during a pol ice int errogation, so th ey are testimo nial. Craw ford , 541 U.S. at 53, 68. Lucero’s testimony does not contravene Craw

fo rd , because Marrufo was available fo r cross-examination, fo r th ree reasons. First, he admitted having made the statement to Lucero. Second, Lucero’s testimony was limit ed to those topics about which Marrufo had already te stified. Third, even if this testimo ny were oth erw ise inadmissible, Aco sta opened the door to its int roduction. Marrufo admitted making the statem ent to Lucero. It was materi ally different fo r the witn ess in Douglas , who did not acknowledge making the statem

ent attri buted to him. Because Marrufo acknowledged the statem ent as his, Acosta could have cross-examined him about i t. See supra Part III.A.
Lucero’s testimo ny was limit ed to topics Marrufo had testified about earlier in the tri al. Marrufo denied stating t hat he had conspired wit h Acosta to conceal and deliver the cocaine or th at Acosta was involved in the offense. When Lucero was called fo r redi rect and Acosta objected, the court limit ed the q uestioning “t o th ose issues th at [the government] specifically addressed Marrufo on.” The government fo llo wed these inst ructions and asked Lucero only about the prior statem ents of Marrufo th at contradicted his earlier denial th at he adm

it ted Acosta was involved. 1 4

13 United States v. Green , 272 F.3d 74 8, 754 (5th Cir. 2001) (quoting United States v. Raymer , 876 F.2d 383, 388 (5th Cir.1989)). 14 The government’s short questi o ning of Lucero on redirect, in its entirety, follows: Q: Agent Lucero, did Mr. Marrufo indicate to you how he became aware that there was a hidden compartment located in the tractor that we previously discussed? A: Yes, sir. Q: How was that?
A: He was made aware by Mr. Robert Acosta. Q: Did Mr. Mar r ufo indicate to you who had loaded the compartment? A: Yes, sir. Q: And what did he indicate to you?
A: He told me that Robert Acosta had loaded (continued...)8

Because Lucero testified only about topics already covered by Marrufo, Acosta could have cross-examined Marrufo on these subjects. Finally, Acosta opened t he door. During his cross-examination of Marrufo, Acosta impeached Marrufo’s credibilit y by showing th at Marrufo stood to gain from implicat ing Acosta. Acosta thus implied that Marrufo’s reluctance to testify was driven by a fear of perjuring himself or contradicting his earlier st atement s to pol

ice. This opened the door for the government to int roduce evidence showing th at Marrufo’s tri al testimo ny was not a recent fabrication. Even if t he questions to Lucero were not oth erwis e adm

issible, t hey could be admit ted to rebut Acosta’s insinuations.
AFFIRMED.

14 (...continued) the compartment. Q: Did Mr. Marrufo i n dicate anything to you regarding whether or not gloves could b e 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 indi c ate anything to you regarding whether he and Mr. Acosta SS and this particu lar statement I am talking about before the events that occurred on November 10 of 2004 SS of whether they thought they would get caught if they engaged in this venture?
A: Mr. Marrufo stated that based on how well the hidden compartment SS how well it was hidden, that they wouldn’t be caught.