* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41404

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GUADALUPE VASQUEZ; DAVID VASQUEZ, Jr.,

also known as David Vasquez, 

Defendants-Appellants

Appeals from the United States District Court 

for the Southern District of Texas

(04-CR-369)

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

Defendants-Appellants David Vasquez, Jr. (“David”) and Guadalupe

Vasquez (“Guadalupe”), collectively “the Vasquez brothers” or “the defendants,”

were convicted by a jury of (1) conspiracy to commit mail fraud and to commit

extortion under color of official right, (2) aiding and abetting mail fraud, and (3)

aiding and abetting extortion under color of official right. David was also

convicted of three counts of violating the Travel Act to promote state bribery.
No. 05-41404

2

They challenge their convictions on the grounds that (1) the record on appeal is

incomplete, and (2) the admission of the recorded conversations between an

alleged unindicted co-conspirator and an undercover agent violated their Sixth

Amendment confrontation rights. We affirm. 

I. Facts and Proceedings

David was the superintendent of schools for Santa Rosa Independent

School District(“S.R. ISD”), and Guadalupe was a member ofthe S.R. ISD board.

Daniel Rodriguez worked as a frontman at Conceptual Reality, Inc., (“CRI”), an

architectural firm, that had entered into illegal contracts with the schools. 

As part of an investigation of corruption in the awarding of municipal

contracts in the Rio Grande Valley, Special Agent Ozvaldo Alaniz (“Agent

Alaniz”), working undercover, became acquainted with Rodriguez. Agent Alaniz

represented himself to be a vendor of school supplies and furniture. Rodriguez

introduced Agent Alaniz to city, school, and other elected officials in the Rio

Grande Valley, including the defendants. Rodriguez told Agent Alaniz that he

had payed bribes to local officials to convince them to award contracts to CRI.

Specifically, Rodriguez indicated that he had bribed the Vasquez brothers in the

past, giving them cash and paying for vacations. 

Through Rodriguez, Agent Alaniz attempted to enter into a contract with

S.R. ISD. David informed Agent Alaniz that the only supplies the schools

needed were tires. Agent Alaniz asked if there were any personal items that

David needed; David indicated that he needed new tires for his truck. Agent

Alaniz delivered the tires to the school district, but David had already purchased

his own tires. David agreed with Agent Alaniz that Guadalupe should receive

the tires. In the end, Agent Alaniz purchased tires for Guadalupe’s daughter

and son-in-law.

Rodriguez purchased airline tickets to Las Vegas and paid for meals and

a hotel room in Las Vegas for the defendants. David told federal officers that he
No. 05-41404

3

believed that Rodriguez had paid for the trip to thank David for helping

Rodriguez obtain a school contract. David further admitted asking Rodriguez

to pay for another brother, Danny Vasquez, to fly to Washington, D.C. David

also acknowledged that Al Cardenas, who had been pursuing a large

construction contract with the school district, obtained a female escort service

for David. And, the construction contract was awarded to Cardenas.

The Vasquez brothers were convicted by a jury on the above named counts.

David also was convicted of violating the Travel Act to promote state bribery.

David was sentenced to a 48-month term of imprisonment to be followed by a

three-year term of supervised release. He was ordered to pay a $75,000 fine and

a special assessment fee. Guadalupe was sentenced to a 54-month term of

imprisonment to be followed by a three-year term of supervised release. He was

ordered to pay a $60,000 fine and a special assessment fee. The defendants

timely filed a notice of appeal. 

We extended the briefing deadline at the request of the defendants’

appellate counsel, who had not represented them at trial, based on her report

that there were large portions of the record missing and that the transcript of

the trial was incomplete. Missing from the record were thirty-two recordings,

including the conversations recorded by Agent Alaniz that were admitted at

trial, as well as government exhibits. Appellate counsel had contacted the Clerk

of Court for the Southern District of Texas, but the clerk had neither any record

of the exhibits introduced at trial by the government nor any transcripts of the

tape recordings admitted at trial. In her brief, counsel asserted that the gaps in

the record require that the defendants’ convictions be reversed and a new trial

granted. After the defendants’ brief was filed, however, the tape recordings were

sent to us by the district court. In addition, the government submitted

transcripts of excerpts of those tape recordings when it filed its brief. Thus, the

record before us, to which counsel had access, is now complete. Although we
No. 05-41404

1 United States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977) (Selva II).

2 28 U.S.C. § 753(b).

3 Selva II, 559 F.2d at 1306 (footnote omitted).

4 See, e.g., United States v. Taylor, 607 F.2d 153, 155 (5th Cir. 1979); United States v.

Selva, 546 F.2d 1173, 1174-75 (5th Cir. 1977) (Selva I).

5 See United States v. McCusker, 936 F.2d 781, 785 and n.4 (5th Cir. 1991) (per curiam)

(finding that none of the record was missing where tape recordings introduced and played at

trial, but not simultaneously transcribed by the court reporter, were included in the record on

appeal).

4

allowed the defendants’ counsel time to file a supplemental brief, she has failed

to do so.

II. Law and Analysis

A. Right to a Complete Record on Appeal

“[A] criminal defendant has a right to a record on appeal which includes

a complete transcript ofthe proceedings attrial.”1 Similarly, the Court Reporter

Act requires that a court reporter “shall record[] verbatim by short hand . . . or

any other method . . . all proceedings in criminal cases had in open court.”2

When, as here, “a criminal defendant is represented on appeal by counsel other

than the attorney at trial, the absence of a substantial and significant portion

of the record, even absent any showing of specific prejudice or error, is sufficient

to mandate reversal.”3 Ordinarily in such a case, we remand to the district court

for a determination whether the record can be reconstructed.4 Here, however,

remand is not necessary, as the record before us is now complete.5

B. Confrontation Clause

The Vasquez brothers also contend that the admission of Rodriguez’s

statements violated their rights under the Confrontation Clause. “The

Confrontation Clause prohibits the admission of an out-of-court testimonial

statement unless the witness is unavailable and the defendant has had a prior
No. 05-41404

6 United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).

7 United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007) (citing Crawford v.

Washington, 541 U.S. 36, 59 (2004) and quoting United States v. Holmes, 406 F.3d 337, 348

(5th Cir. 2005)). To the extent the government argues that we have rejected the Vasquez

brothers’ assertion that the fact that a statement is excluded from the hearsay definition by

Rule 801(d)(2)(E) does not dispose of the confrontation clause issue, it is clearly incorrect.

United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005), cited by the government, is not

to the contrary. In Delgado, the court noted that the statements at issue were both nontestimonial and admissible hearsay. The court did not hold that the statements were nontestimonial because they were admissible hearsay. 

The government argues at length that the statements at issue fall within Rule

801(d)(2)(E) ofthe Federal Rules of Evidence. The defendants, however, have not appealed the

denial of their hearsay objections. 

8 Pryor, 483 F.3d at 312 (quoting United States v. Jiminez, 464 F.3d 555, 558 (5th Cir.

2006)). 

5

opportunity to cross-examine the witness.”6“This prohibition is ‘irrespective of

whether the statement falls within a firmly rooted hearsay exception or bears

particularized guarantees of trustworthiness.’”7“Confrontation Clause

objections that were properly raised at trial are reviewed de novo, subject to

harmless error analysis.”8

Although the Vasquez brothers objected to the admission of Rodriguez’s

statements on both hearsay (the denial of which has not been appealed) and

Confrontation Clause grounds, the government contends that the Vasquez

brothers have not preserved this objection on appeal, as, it asserts, they did not

state the specific ground of objection, i.e., that Rodriguez’s statements were

testimonial. The government therefore urges us to apply plain error review.

This argument fails. When a criminal defendant objects on Confrontation

Clause grounds, he is implicitly contending that the challenged statement is

testimonial. After all, a statement that is not testimonial cannot violate the
No. 05-41404

9 Crawford v. Washington, 541 U.S. 36, 59 (2004); Holmes, 406 F.3d at 348 (“Because

the categorical rule adopted in Crawfordis triggeredonly withrespectto ‘testimonial’ evidence,

whether a challenged statement falls within the class of evidence deemed ‘testimonial’ will

generally be outcome-determinative.”). 

10 See Davis v. Washington, __ U.S. __, 126 S. Ct. 2266, 2275 (2006) (citing Bourjaily

v. United States, 483 U.S. 171, 181-184 (1987) and noting that “statements made unwittingly

to a Government informant” were “clearly nontestimonial”).

6

Confrontation Clause.9 Accordingly, we review the defendants’ Confrontation

Clause challenge de novo.

The Vasquez brothers contend that, because the “jig [was] up” for

Rodriguez by the time the FBI started investigating the Vasquez brothers,

Rodriguez’s statements were testimonial. There is nothing in the record,

however,to suggestthat Rodriguez was aware that his conversations with Agent

Alaniz were being recorded. Instead, it appears that Rodriguez made the

statements at issue unwittingly to an undercover officer. Thus, the statements

are not testimonial and their admission does not violate the Vasquez brothers’

Confrontation Clause rights.10

III. Conclusion

Finding no error, we AFFIRM.