Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-41317

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARIO JESUS OBREGON,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-452-1

Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Mario Jesus Obregon, along with multiple codefendants, was charged in

an indictment with conspiracy to kidnap an individual in foreign commerce,

kidnapping an individual in foreign commerce, and aiding and abetting the use

of a firearm during and in relation to a crime of violence. A jury convicted him

of the charged offenses, and he was sentenced to a total of 312 months of

imprisonment and a five-year term of supervised release. He now seeks to

appeal his conviction.

United States Court of Appeals

Fifth Circuit

F I L E D

March 31, 2010

Charles R. Fulbruge III

Clerk

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Obregon contends that the evidence was insufficient to establish that he

conspired to kidnap an individual in foreign commerce or that he knowingly and

intentionally kidnapped an individual in foreign commerce. He argues that the

Government did not prove beyond a reasonable doubt that he agreed to have the

victim, Mateo Esquivel Valiente Solis (Solis), restrained or moved unwillingly,

or that he derived any particular benefit from Solis’s detention. He asserts that

the evidence establishes that he merely was present for the events surrounding

the kidnapping and that he did not voluntarily participate in the commission of

the crime.

Because Obregon moved for a judgment of acquittal under Federal Rule

of Criminal Procedure 29 at the close of the Government’s case, and he renewed

the motion at the close of all the evidence, we consider the evidence presented

in the light most favorable to the Government to determine whether a rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. See United States v. Lopez-Moreno, 420 F.3d 420, 437-438

(5th Cir. 2005). We resolve all reasonable inferences and credibility

determinations in support of the verdict and determine whether the jury made

a rational decision. See United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th

Cir. 2002); United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995). 

To prove an offense of kidnapping pursuant to 18 U.S.C. § 1201, the

Government must establish “(1) the transportation in interstate commerce (2) of

an unconsenting person who is (3) held for ransom or reward or otherwise,

(4) such acts being done knowingly and willfully.” United States v. Barton, 257

F.3d 433, 439 (5th Cir. 2001). A defendant may be punished as a principal if he

aids or abets the commission of an offense, i.e., Obregon may be convicted of

kidnapping if he associated with the criminal venture, purposefully participated

in the crime, and sought by his actions for it to succeed. See United States v.

Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007).

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To prove a conspiracy to kidnap, the Government must establish that

(1) an agreement existed between two or more people to pursue the offense of

kidnapping, (2) the defendant knew of the agreement, and (3) voluntarily

participated in the conspiracy. 18 U.S.C. §1201(c); United States v. Bankston

603 F.2d 528, 531, 532-33 (5th Cir. 1979). “[A]greement may be inferred from

‘concert of action, [v]oluntary participation may be inferred from a collocation of

circumstances, and [k]nowledge may be inferred from surrounding

circumstances.’” United States v. Paul, 142 F.3d 836, 840 (5th Cir. 1998)

(citations omitted). “Typically, the same evidence will support both a conspiracy

and an aiding and abetting conviction.” United States v. Singh, 922 F.2d 1169,

1173 (5th Cir.1991).

Viewing the evidence in the light most favorable to the Government, and

resolving all reasonable inferences and credibility determinations in support of

the verdict, there is sufficient evidence in the record that Obregon was guilty of

both conspiracy to kidnap and aiding and abetting the commission of the

kidnapping. The record contains evidence that Obregon freely associated with,

and willingly promoted the aims of, a group that confined Solis and intended to

transport him to Mexico. The record specifically supports that Obregon directly

facilitated the objectives of the group by, inter alia, authorizing the detention of

Solis and acting to conceal the group’s activities after Solis was transported

unwillingly. The record also contains evidence that the kidnapping was devised

to punish Solis for perceived transgressions against Obregon and that Obregon

had substantial influence over whether Solis was released or detained. Thus,

the record shows that Obregon voluntarily affiliated himself with a group that

undertook specific actions that Obregon knew would cause Solis’s detention. See

Pando Franco, 503 F.3d at 394; Paul, 142 F.3d at 840.

Obregon also argues that the evidence was insufficient to sustain his

conviction of using a firearm during and in relation to a crime of violence. He

contends that the Government failed to prove that he committed a crime of

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violence (i.e., either conspiracy to kidnap or kidnapping), and he therefore could

not be convicted of using a firearm in relation to those crimes. He also asserts

that there is no evidence that he at any time possessed a firearm, or that the

weapons present during the kidnapping were used in connection with that crime.

Pursuant to 18 U.S.C. § 924(c)(1), “any person who, during and in relation

to any crime of violence . . . uses or carries a firearm, or who, in furtherance of

any such crime, possesses a firearm, shall, in addition to the punishment

provided for such crime of violence,” be sentenced to varying terms of

imprisonment based on the kind of firearm or the nature of its use. Kidnapping

and conspiracy to kidnap are crimes of violence for purposes of the statute. 18

U.S.C. § 924(c); United States v. Phipps, 319 F.3d 177, 183 (5th Cir. 2003).

Under Pinkerton v. United States, 328 U.S. 640 (1946), “a party to a conspiracy

may be held responsible for a substantive offense committed by a coconspirator

in furtherance of a conspiracy, even if that party does not participate in or have

any knowledge of the substantive offense.” United States v. Jensen, 41 F.3d 946,

955-56 (5th Cir.1994) (citation and internal quotation marks omitted). For a

defendant to be convicted of the substantive offenses of a coconspirator under

Pinkerton, the act must have been reasonably foreseeable to the defendant.

United States v. Dean, 59 F.3d 1479, 1489, 1490 n.20 (5th Cir.1995).

The instant record contains sufficient evidence for a rational trier of fact

to have found beyond a reasonable doubt that Obregon committed an offense

under § 924(c). See Lopez-Moreno, 420 F.3d at 437-438. Although there was no

evidence that Obregon actually handled a firearm or at any time utilized a

firearm, the record demonstrates that Obregon’s co-conspirators used firearms

to facilitate the kidnapping of Solis and that it was reasonably foreseeable to

Obregon that his co-conspirators would use weapons for that purpose. Obregon’s

co-conspirators specifically brandished weapons to restrain and to intimidate

Solis, and the guns were displayed and used in Obregon’s presence. Because

there also was adequate evidence to sustain Obregon’s convictions of kidnapping

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and conspiracy to kidnap (i.e,. crimes of violence), Obregon was permissibly

convicted under § 924(c) for the violations committed by his co-conspirators. See

Jensen, 41 F.3d at 955-56; Dean, 59 F.3d at 1489. 

Obregon further argues that the district court violated the Confrontation

Clause by wrongly interfering with his counsel’s cross-examination of witnesses.

He contends that the court specifically prevented his counsel from questioning

witnesses on subjects that were pertinent to their credibility. He asserts that

the court essentially protected witnesses from impeachment or unfairly limited

his counsel’s ability to ask questions about meaningful matters. 

This court reviews claimed violations of a defendant’s Sixth Amendment

confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.

2004). If there is no constitutional violation, then this court reviews a district

court’s limitations on cross-examination for an abuse of discretion, which

requires a showing that the limitations were clearly prejudicial. United States

v. Jimenez, 464 F.3d 555, 558-59 (5th Cir. 2006).

The Confrontation Clause of the Sixth Amendment guarantees a criminal

defendant the opportunity to cross-examine the witnesses against him.

Delaware v. Van Arsdall, 475 U. S. 673, 678 (1986). However, the Confrontation

Clause merely guarantees “an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis

in original). The district court has “wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on . . . cross-examination based

on concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only marginally

relevant.” Van Arsdall, 475 U.S. at 679. The Confrontation Clause is generally

satisfied when the defendant “has been permitted to expose to the jury the facts

from which jurors, as the sole triers of fact and credibility, could appropriately

draw inferences relating to the reliability of the witness.” United States v.

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Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (internal quotation marks and citation

omitted). 

The record shows that the district court’s intervention did not interfere

with the defense’s cross-examination of witnesses, but instead limited that crossexamination to germane and appropriate subjects. The district court properly

restricted the extent to which defense counsel was allowed to probe marginally

relevant topics that Obregon only speculates may have enabled him to impeach

witnesses. See Van Arsdall, 475 U.S. at 679. The district court likewise did not

wrongly limit counsel from repetitive cross-examination because any limitations

on counsel’s ability to elicit cumulative testimony did not affect the jury’s ability

to evaluate the credibility of witnesses. See United States v. Davis, 393 F.3d 540,

548 (5th Cir. 2004). The district court also properly limited counsel’s use of

argumentative questions, cf. United States v. Tansley, 986 F.2d 880, 886 (5th

Cir. 1993) (concluding that defendant’s rights were not infringed upon when the

district court imposed limitations after cross-examination became redundant and

argumentative) and permissibly set forth limitations on the subjects on which

parties could question witnesses. Cf. United States v. Martinez, 151 F.3d 384,

389-90 (5th Cir. 1998) (holding that court did not prejudice defendant by limiting

his counsel to pre-established limitations on, inter alia, the scope of crossexamination). Accordingly, Obregon has not shown that the limitations that the

district court imposed on his counsel’s cross-examination constituted an abuse

of discretion.

The judgment of the district court is AFFIRMED.

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