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

_______________

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, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert Acosta claims a violation of his

Sixth Amendment right to confront a hostile

witness. We affirm.

I.

While conducting routine surveillance at an

El Paso truck stop, police officer Jose Lucero

observed a car with Chihuahuan license plates

pull up to an empty flatbed truck.1Juan Marrufo exited the car’s passenger seat, and he

and the driver of the 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

number of drug arrests involving cars with

Chihuahuan license plates.
2

the car and drove to the truck stop’s convenience store. Lucero followed and observed

Marrufo enter the store, after which the car

left the truck stop. Suspecting narcotics

smuggling, Lucero requested assistance from

border patrol agent Gilbert Almanza, who arrived approximately fifteen minutes later. The

two officers observed Marrufo leave the store

and enter the cab of the truck to which he had

earlier delivered the two bags.

The officers approached the truck and displayed their police credentials. Marrufo was in

the driver’s seat and consented to a search of

the truck, during which Almanza’s canine

alerted to the presence of narcotics. Marrufo

summoned Acosta, who exited the truck’s

sleeper compartment. A hidden compartment

was discovered that contained fortybundles of

cocaine weighing just over eighty-six pounds

and worth approximately $500,000.

BeforeAcosta’strial, Marrufo pleaded guilty. In addition to providing a statement articulating the factual basis of his guilty plea, Marrufo made an additional statement to qualify

for a “safety valve” sentence reduction: He

said he had been employed in June by the

trucking company owned by Acosta’s brother

and had driven for the company without incident until October, when Acosta approached

him with the proposition of making additional

money by smuggling cocaine. Initially hesitant, Marrufo agreed when Acosta demonstrated the sophistication of the truck’s hidden

compartment.

After Marrufo agreed to help smuggle cocaine, he was assigned to drive with Acosta to

El Paso. At the truck stop they were called, as

planned, with instructions for 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 Acosta,

who was waiting in the truck’s cab. Marrufo

purchased a wrench from the convenience

store, which Acosta used to open the compartment where the drugs were concealed. The

two were arrested shortly thereafter.

Marrufo was called as a government witness at Acosta’strial. Before testifying, he appeared outside the jury’s presence and informed the court that, because he feared for

the safety of his family, he did not want to testify. Although he did not state the source of

his fear, it appeared, and the court inferred,

that it was because of threats from Acosta.

The court ordered Marrufo to testify, had

Acosta confined following that day’s proceedings, and had Acosta’s communications monitored.

Marrufo testified that he was a team driver

with Acosta and that the purpose of their visit

to the truck stop was to pick up cocaine. He

said Acosta was the only other person in the

truck. After answering questions about his

own involvement in the offense, he refused to

answerseveralquestions about Acosta’s direct

participation in the crime.2 Several of these

questions referenced Marrufo’s safety valve

statement and the statement that was the factual basis 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 from him,

whether he discussed the cocaine with Acosta,

whether Acosta showed 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 motives in making

his prior statements. Acosta elicited testimony, over the government’s objection, that

Marrufo had believed that he would receive a

more lenient sentence if he implicated Acosta.

The court found that Acosta’s questioning was

designed to impeach Marrufo by illustrating a

motive to lie. Marrufo was not cross-examined about the portions of his prior statements

that implicated Acosta.

The government moved to admit Marrufo’s

safety valve statement, and the court admitted

it with a limiting instruction, finding that Acosta’s questioning had opened the door to the

evidence. It was admitted to show that Marrufo’s trial testimony was not, as Acosta had

suggested, a recent fabrication.

Lucero was recalled to testify about statements Marrufo made during his safety valve

debriefing. Acosta made his first Sixth

Amendment objection at that point, which was

overruled because the court found that Acosta

had opened the door to the admission of those

portions ofthe statementsthat bore directly on

Marrufo’s cross-examination testimony. On

the final day of trial, Acosta made an unsuccessfulSixthAmendment objection to the government’s initial questioning of Marrufo. He

was convicted of conspiring to possess with

the intent to distribute, and possession with the

intent to distribute, five kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 846 and

841 (a)(1) and (b)(1)(A)(ii).

II.

The Confrontation Clause of the Sixth

Amendment guarantees the right to confront

hostile witnesses.4 We review, for plain error

only, any Confrontation Clause issues that

were not contemporaneosly raised at trial.5

Confrontation Clause objections that were

properly raised at trial are reviewed de novo,

subject to harmless error analysis.6

In Crawford v. Washington, 541 U.S. 36

(2004), the Court fundamentally altered the

role oftheConfrontationClause. Twenty-four

years beforeCrawford, theCourt collapsed the

Confrontation Clause into the hearsay rules of

the Federal Rules of Evidence in Ohio v. Roberts, 448 U.S. 56 (1980), holding that statements of unavailable witnesses could be admitted, consistent with the Confrontation Clause,

if they were reliable. Reliability was established by showing that a statement either met

a “firmly rooted hearsay exception” or bore

“particularized guarantees oftrustworthiness.”

Id. at 66. In Crawford the Court replaced the

Roberts standard with a bright-line rule: The

Confrontation Clause prohibits the admission

ofan out-of-court testimonialstatement unless

the witness is unavailable and the defendant

had a prior opportunity to cross-examine the

witness. Crawford, 541 U.S. at 59.

III.

Acosta claims three Confrontation Clause

violations: 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. CONST. amend. VI.

5 United States v. Holmes, 406 F.3d 337, 347

(5th Cir.) (citing United States v. Cartwright,

6 F.3d 294, 300 (5th Cir. 1993); FED. R. CRIM. 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

Marrufo, the admission of the safety valve

statement, and Lucero’stestimonyabout Marrufo’s statements. We address each in turn.

A.

Acosta asserts that the government’s questioning of Marrufo about his prior statements,

during which Marrufo refused to answer some

of the questions, violates the Confrontation

Clause. Acosta did not object when these

questions were asked, so we review for plain

error.7“[T]he plain-error exception to the

contemporaneous-objection rule isto be ‘used

sparingly, solely in those circumstances in

which a miscarriage ofjustice would otherwise

result.’” Id. (quoting United States v. Young,

470 U.S. 1, 15 (1985)).

Crawford barsthe admission of testimonial

statements unlessthe defendant had the opportunity to cross-examine the witness. Though

the Crawford Court did not define “testimonial,”8

it listed several examples of statements

that are testimonialunder anydefinition: “prior

testimony at a preliminary hearing, before a

grand jury, or at a former trial; and . . . police

interrogations.” Crawford, 541 U.S. at 68.

The government’s questionsto Marrufo referenced two priorstatements: the factualbasis of

his guilty plea and his safety valve statement.

Both were used at Marrufo’s sentencing proceeding, so both are testimonial under Crawford.

The next step ofthe Crawford analysis asks

whether Acosta had the opportunity to crossexamine Marrufo about his prior statements.

Each party relies largely on a single case, and

neither case is directly on point.

The government relies on In re Brown, 457

F.3d 392 (5th Cir. 2006), for the proposition

that as long as a witness is available for crossexamination Crawford’s requirements are satisfied. Brown, an eve-of-execution habeas appeal, found, inter alia, that Crawford does not

apply where cross-examination of a witness is

available, even if it is limited. Id. at 395.

Based on this, the government claims that

Crawford’s requirements are satisfied if a defendant has at least some ability to cross-examine. 

For two reasons, this imputes a more

sweeping interpretation than Brown can bear.

First, the Confrontation Clause issue was not

squarely before the Brown court. The court

found three distinct procedural bars to

Brown’s ConfrontationClause claim, and thus

even ifthere had been a Crawford violation the

court was barred from considering it.9 Second, during the trial Brown was permitted to

cross-examine the witness on nearly every aspect of her testimony; the sole limitation was

on the witness’smaritalstatus, which the court

found to be only marginally relevant.10 This is

unlike Marrufo’stestimony, which goesto 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 his habeas petition; (2) Brown did not proffer any newly

discovered evidence 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. Ct. 1434

(2006).
5

heart of the government’s case. For these reasons, Brown 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

trial. Because he intended to appeal his conviction, the witness did not answer any questions, invoking his Fifth Amendment privilege,

even after the judge ordered him to testify.

The prosecutor then introduced an alleged

confession of the witness by reading the confession and periodically asking the witness,

“Did you make thatstatement?” Each time the

witness responded by asserting his Fifth

Amendment privilege. After the entire document had been read, the government called

three law enforcement officers to testify that

the statement had been made by the witness. 

In Douglas the witness’s testimony constituted the only evidence that the defendant had

committed the crime, and there was no indication that the witness’s “refusal to answer was

procured by the petitioner.” Id. at 420. The

Court held that, because the witnessrefused to

answer any questions or to acknowledge making the statement, the defendant had no opportunity to cross-examine the witness about the

statement, and thus its admission through the

government’s questions violated the Confrontation Clause. Id. at 419.

The government’s questioning of Marrufo

can be distinguished from the situation in

Douglas and does not run afoul of the Confrontation Clause, for four reasons. First,

Marrufo admitted making the prior testimonial

statements. One of the bases for the holding in

Douglas was that the witness never admitted

making the statement; the defendant could not

cross-examine the witness about a statement

the witness did not acknowledge as his own.11

In contrast, Marrufo admitted making both the

factual basis of his plea agreement and the

safety valve statement. He also testified that

his safety valve statement was truthful.

Therefore Acosta could cross-examine him

effectively.

Second, despiteAcosta’s accusationsto the

contrary, Marrufo answered several questions

about Acosta’s involvement in the offense.

Marrufo acknowledged that he was a team

driver with Acosta and that Acosta was driving with him in the truck to El Paso to pick up

a shipment of narcotics and wasthe only other

person in the truck. These statements alone

could implicate Acosta, because Marrufo was

seen handing the cocaine to someone in the

truck, and given that he testified that Acosta

wasthe only other person in the truck, it could

be inferred that Marrufo was handing the bags

to Acosta. But even without this inference,

becauseMarrufo testified about Acosta’s presence at the time of the offense, he could be

cross-examined on this testimony.

Third, Acosta could impeach Marrufo

about his motives in making his prior statements or discredit his testimony by attacking

his perceptions during the offense. In fact, this

is exactly what Acosta did when, on cross-examination, he impeached Marrufo by suggesting that he had lied in his prior statements because he thought that if he implicated Acosta

he would receive a more lenient sentence.

Acosta could have similarly attacked Marrufo’s perception ofthe eventsleading up to, and

11 “[E]ffective 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.” Douglas, 380 U.S. at 420.
6

during, the crime. This is unlike the situation

facing the defendant in Douglas, who could

not ask any questions of the non-responsive

witness.

Finally, and perhaps most importantly,

Marrufo answered every question he was

asked on cross-examination. The tactical decision by a defendant to forego cross-examination does not create a constitutional violation.12

In Crawford, 541 U.S. at 59 n.9, the

Court held that “when the declarant appears

for cross-examination at trial, the Confrontation Clause places no constraints at all on the

use of his prior testimonial statements . . . .

The Clause does not bar admission of a statement so long as the declarant is present at trial

to defend or explain it.” 

On cross-examination Acosta made a tactical decision to refrain from asking Marrufo

about the questions he refused to answer on

direct examination and from asking him about

his earlier statements implicating Acosta. As

we have explained, Acosta could have probed

either of these subjects on cross-examination.

These four reasons illustrate the novelty of

Acosta’sCrawford claim. Although we do not

speculate asto hypothetical outcomes, if Marrufo had steadfastlyrefused to answer allquestions about Acosta’s involvement, had denied

making the prior statements, and had refused

to answer questions on cross-examination, we

might face a Crawford problem to which

Acosta might be entitled to relief, even under

the imposing plain error standard. In fact, if

Marrufo had refused to answer a single question on cross-examination theCrawford analysis could have been challenging. 

But Marrufo acknowledged Acosta’s presence during the offense and acknowledged

making the prior statements. Thus, both of

these subjects could be reached on cross-examination. Acosta made a tactical decision to

avoid these questions, and Marrufo answered

every question he was asked on cross-examination. Thus Crawford does not apply.

B.

Next, Acosta objects to the admission of

Marrufo’s written safety valve statement. He

did not raise this objection at trial, so we review for plain error. Holmes, 406 F.3d at 347.

The admission ofthisstatement, however,survives even de novo review, because it was not

admitted to establish the truth of the matter

asserted and because Acosta opened the door

to its admission.

Under Crawford, 541 U.S. at 59 n.9, the

Confrontation Clause does not bar the use of

testimonialstatementsfor purposes other than

establishing the truth of the matter asserted.

The district court found that the safety valve

statement showed that Marrufo’s trial testimony was not a recent fabrication and demonstrated prior inconsistent statements concerning the questions Marrufo refused to answer.

The court admitted the statement with the limiting instruction that it was “not being allowed

into evidence to prove whether the contents of

the exhibit are true or not true. In other

words, it is not being offered to establish the

truthfulness of what it says.” 

Juries are presumed to follow limiting instructions. United States v. Bieganowski, 313

F.3d 264, 288 (5th Cir. 2002). Because the

statement was not admitted to establish the

truth ofthe matter asserted, it does not contravene Crawford.

Even ifthe statement were not being admit12 See, e.g. Lowery v. Collins, 996 F.2d 770,

771-72 (5th Cir. 1993).
7

ted for purposes other than asserting its truth,

its admission would be permissible, because

Acosta invited the error. If a defendant injects

otherwise inadmissible evidence, “the defense

cannot later object to such ‘invited error.’”13

In his cross-examination of Marrufo, Acosta

made a tactical decision to discredit Marrufo’s

safety valve statement by presenting it as a

concessionmade to please the government and

asserting that Marrufo was being evasive at

trial because he feared a perjury conviction.

This opened the door for the statement’s admission to rebut the impression that Marrufo’s

reluctance to testify was based on a fear that

his statements at trial contradicted an earlier

statement in which he lied to obtain a more

lenient sentence.

C.

Finally, Acosta claims that the court violated the ConfrontationClause when it permitted Lucero to testify about Marruo’s prior

statements. This is the only issue to which

Acosta properlyraised aCrawford objectionat

trial, and thus we review de novo. 

Lucero referenced statements Marrufo

made during hissafety valve debriefing. These

statements were made during a police interrogation, so they are testimonial. Crawford, 541

U.S. at 53, 68. Lucero’s testimony does not

contravene Crawford, because Marrufo was

available for cross-examination, for three reasons. First, he admitted having made the statement to Lucero. Second, Lucero’s testimony

was limited to those topics about which Marrufo had already testified. Third, even if this

testimonywere otherwise inadmissible, Acosta

opened the door to its introduction.

Marrufo admitted making the statement to

Lucero. It was materially different for the witness in Douglas, who did not acknowledge

making the statement attributed to him. Because Marrufo acknowledged the statement as

his, Acosta could have cross-examined him

about it. See supra Part III.A. 

Lucero’s testimony was limited to topics

Marrufo had testified about earlier in the trial.

Marrufo denied stating that he had conspired

with Acosta to conceal and deliver the cocaine

or that Acosta was involved in the offense.

When Lucero was called for redirect and

Acosta objected, the court limited the questioning “to those issues that [the government]

specifically addressed Marrufo on.” The government followed these instructions and asked

Lucero only about the prior statements of

Marrufo that contradicted his earlier denial

that he admitted Acosta was involved.14

13 United States v. Green, 272 F.3d 748, 754

(5th Cir. 2001) (quoting United States v. Raymer,

876 F.2d 383, 388 (5th Cir.1989)).

14 The government’s short questioning 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. Marrufo 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 the door. During

his cross-examination of Marrufo, Acosta impeached Marrufo’s credibility by showing that

Marrufo stood to gain from implicating Acosta. Acosta thus implied that Marrufo’s reluctance to testify was driven by a fear of perjuring himself or contradicting his earlier statements to police. This opened the door for the

government to introduce evidence showing

that Marrufo’strial testimonywas 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 andMr. 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 hidden, that they wouldn’t be caught.