IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40370

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VICENTE ALVARADO-VALDEZ,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Texas 

No. 5:98-CR-608-2

Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In 1998, Vicente Alvarado-Valdez , Ricardo Flores, Pablo Santos Chapa,

and Julian Medrano were indicted for conspiracy to possess with intent to distribute more than five kilograms of cocaine. Alvarado-Valdez and Chapa were

charged in a second count with aiding and abetting possession with intent to

distribute more than five kilograms of cocaine. Chapa pleaded guilty. AlvaradoValdez, Flores, and Medrano were convicted by a jury as charged. We affirmed

United States Court of Appeals

Fifth Circuit

F I L E D

March 12, 2008

Charles R. Fulbruge III

Clerk
No. 99-40370

2

the convictions of Medrano and Flores. United States v. Flores, No. 99-40367,

281 F.3d 1279 (table), 2001 WL 1692443 (5th Cir. Nov. 26, 2001) (per curiam).

We erroneously dismissed Alvarado-Valdez’s appeal for want of prosecution and

have reinstated it. In light of Crawford v. Washington, 541 U.S. 36 (2004), we

vacate and remand for a new trial.

I.

On July 17, 1997, Border Patrol agents stopped a tractor-trailer owned by

Zenon Cantu and driven by Eleazar Eggers near Laredo,Texas. Federal officials

found approximately 1,436 kilograms of powdered cocaine inside.

Cantu surrendered the next morning to agents of the Drug Enforcement

Administration, and federal agents conducted a warranted search of his house,

seizing telephone and address books, ledgers, and other documents. Eggers and

Cantu were indicted for conspiracy to possess with intent to distribute cocaine

in violation of 21 U.S.C. § 841(a)(1). Cantu pleaded guilty pursuant to a plea

agreement. 

More than a year later, Alvarado-Valdez and Chapa was arrested by federal officials, and two days later Flores and Medrano were arrested. On July 21,

1998, the government obtained an indictment charging that (i) Alvarado-Valdez

and the three co-defendants (Chapa, Medrano, and Flores) had conspired and

agreed to possess with intent to distribute more than five kilograms of cocaine

in violation of 21 U.S.C. § 841(a)(1) in June and July 1997; and (ii) AlvaradoValdez and Chapa had possessed with intentto distribute approximately 1,436.2

kilograms of cocaine in violation of the same provision. 

Chapa entered into a plea agreement in September 1998, pleading guilty

only to Count One of the indictment. Alvarado-Valdez, Medrano, and Flores

were convicted by a jury.
No. 99-40370

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II.

A.

The government’s evidence against Alvarado-Valdez consisted of (i) testimony by Cantu and Chapa about a conspiracy to transport cocaine in June and

July 1997, (ii)telephone records showing calls from Cantu and Chapa to Alvarado-Valdez during those months, and (iii) evidence about an alleged 1996 marihuana transaction involving Cantu and Alvarado-Valdez. Cantu testified at

trial. Before trial, Chapa fled to Mexico, and the government was unable to locate him. The government had Officer Garcia read portions of Chapa’s interrogation into evidence over the objection of Alvarado-Valdez’s counsel.

1.

As the government acknowledges, it relied primarily on the testimony of

Cantu, who owned a trucking business in Laredo. He testified to overseeing the

transportation of fifty loads of narcotics, of which he personally drove thirty-five.

Cantu testified that Chapa recruited Alvarado-Valdez, who in turn recruited Cantu, who said he had known Alvarado-Valdez for aboutfifteen months

before June 1997, when the first shipment of cocaine was transported. Cantu

claimed Alvarado-Valdez approached him in May 1997 to transport a load of

marihuana but that nothing came of that deal. Alvarado-Valdez then proposed

Cantu transport cocaine at a rate of $300 per kilogram in June. Cantu recruited

Medrano, Flores, and Eggers to drive the tractor-trailers.

Medrano and Flores drove the first load. Cantu testified he and Flores

picked up 840 kilograms of cocaine from Alvarado-Valdez’s house. To the contrary, however, Cantu also testified that he never saw cocaine at Alvarado-Valdez’s house, from which Flores drove the cocaine to Cantu’s house. 

Medrano and Flores successfully transported the cocaine from Laredo to
No. 99-40370

1 Medrano and Flores testified to only transporting a load of furniture to Port Washington. Cantu testified that he would disguise cocaine shipments as furniture shipments.

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Port Washington, New York.1 While there, Medrano called Cantu and told him

that David Gomez, also known as “Chongo,” their contact person, had not arrived, though they had called him numerous times. Cantu said he informed

Alvarado-Valdez of this problem. 

Thereafter, Medrano and Flores reported that Chongo had retrieved the

trailer. Cantu claims he received $202,000 from Alvarado-Valdez on June 18,

which he in turn gave to Medrano and Flores in exchange for a fee of $20,000.

For the second load, which was expected to be approximately 1,145 kilograms, Cantu met Alvarado-Valdez and Chapa in early July. This time Chapa

was in possession of the cocaine. Cantu could not hire Medrano and Flores

again, so he turned to Eggers.

Cantu and his son drove to a mall to meet a van with the cocaine. The van

was driven by the same man who had delivered the cocaine the previous month.

Alvarado-Valdez told Cantu the truck belonged to him even though it was registered to Chapa. Cantu drove the cocaine to his home and noticed that it had

branding similar to the June shipment, indicating thatthey came from the same

source.

Eggers met with Chapa, Alvarado-Valdez, Cantu, and a long-haired

stranger, Chongo, to whom the cocaine was to be delivered. Alvarado-Valdez

gave Cantu, who in turn gave Eggers, Chongo’s cellular phone and pager numbers.

Cantu acquired legitimate bills of lading from Flores’s business, Panamex,

claiming the trailer would be loaded with furniture. Eggers took possession of

the trailer on July 17. After Eggers departed, Cantu testified that he notified

Alvarado-Valdez. Eggers, driving the trailer, was arrested that day at the Border Patrol checkpoint. He was in possession of Cantu’s loaned cell phone, the
No. 99-40370

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one used by Medrano on the previous trip. Agents seized 1,436.2 kilograms of

cocaine.

Cantu had followed Eggers to the checkpoint and saw allthis. He testified

to driving to Alvarado-Valdez’s house immediately to inform him. 

Eggers implicated Cantu and Chapa but not Alvarado-Valdez. Chapa fled

to Mexico. The following day, Chapa called Alvarado-Valdez and suggested Cantu and Alvarado-Valdez rendezvous with him in Mexico. Alvarado-Valdez feared

repercussions from superiors if he went to Mexico. Cantu turned himself in on

the advice of counsel.

2.

Because Chapa had fled to Mexico,the government called Garcia to testify

as to what Chapa had told him in interrogation. Garcia stated the following over

objection of counsel:

Mr. Chapa stated that in early May 1997, Chapa was introduced

to Francisco Paco; that is, Paco, by a friend of Chapa identified as

Juan. Chapa stated that Francisco Paco propositioned Chapa to

transport approximately 800 kilograms estimated by gross weight

of cocaine from Laredo Texas to Port Washington, New York. Chapa added that Chapa was to getting [sic] paid $350 per kilograms of

cocaine that Chapa transported. Chapa stated that due to financial

reasons Chapa agreed, advising Francisco Paco that Chapa would

need to find a driver that could get a legitimate load as a cover load

to Port Washington, New York.

***

Chapa stated that approximately one week later, after the first

load of cocaine was delivered, Chapa was once again propositioned

by Francisco Paco while inLaredo,Tamaulipas, Mexico to transport

1,[4]36.2 kilograms estimated gross weight of cocaine, which was

seizedSSor were seized on 07-17-97.

***
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Chapa also stated that during this period of time Chapa was under constant pressure from PacoSSor Francisco, excuse me, Paco to

have the cocaine delivered. Chapa would constantly call Cantu and

pressure Cantu into finding a driver to deliver the cocaine.

B.

The governmentintroduced other evidence,though it admits to relying primarily on the above testimony. Authorities obtained a search warrant for Cantu’s and Chapa’s properties;there was no search of Alvarado-Valdez’s residence.

Agents seized telephone and address books, ledgers, documents, communication

devices, radios, and cellular phones from Cantu’s property. The search also uncovered a yellow notebook with notations indicative of drug activity. The phone

numbers of other conspirators were found. Though the government says it found

two documents bearing Alvarado-Valdez’s name,the record is inconclusive. The

search of Chapa’s residence uncovered various phone numbers ofthe co-conspirators but not Alvarado-Valdez’s.

The phone records indicate a flurry of calls among the conspirators, including to and from numbers allegedly belonging to Alvarado-Valdez, around the

time of the two deliveries. Alvarado-Valdez contends that one of the numbers

attributed to him, which was in his son’s name, was not his. Panamex organized

deliveries to Port Washington on the dates alleged, but Medrano and Flores admitted to at least making furniture deliveries.

III.

Alvarado-Valdez claims his Sixth Amendment Confrontation Clause right

was violated by the introduction of Chapa’s testimony. We review Confrontation

Clause objections de novo, subject to harmless error analysis. United States v.

Jimenez, 464 F.3d 555, 558 (5th Cir. 2006). Both sides agree that AlvaradoValdez properly objected to the subject testimony and preserved the issue for de

novo review.
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In fairness to the district court, we recognize that Crawford had not been decided

when this case was tried.

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Crawford, 541 U.S. at 68, instituted a categorical rule barring the admission of out-of-courttestimonial statements against the accused absent opportunity for cross-examination. The bar applies “irrespective of whether the statement

falls within a firmly rooted exception or bears particularized guarantees of

trustworthiness.” United States v. Holmes, 406 F.3d 337, 348 (5th Cir. 2005).

Chapa’s testimony is within the rule, because Crawford applies at a minimum

“to police interrogations.” Crawford, 541 U.S. at 68. 

Nor is there any question that the testimony was offered to prove the matter asserted and therefore was hearsay. See FED.R.EVID. 801; Holmes, 406 F.3d

at 349. Chapa’s testimony was offered to prove that he and Alvarado-Valdez

conspired with the others to transport cocaine in June and July 1997. Though

the parties agree a constitutional violation occurred,2they disagree what burden

the government must meet to establish harmless error.

A.

A defendant convicted on the basis of constitutionally inadmissible Confrontation Clause evidence is entitled to a new trial unless it was harmless in

that there “‘there was [no] reasonable possibility that the evidence complained

of might have contributed to the conviction.’” Chapman v. California , 386 U.S.

18, 24 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). The

government bears the burden of establishing the error is harmless beyond a reasonable doubt. United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005). 

The government argues that it can meet its burden by pointing to other

evidence in the record to support conviction. For this, the government wholly

relies on United States v. Rodriguez-Martinez, 480 F.3d 303 (5th Cir. 2007), in

which we said,
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To determine whether the Confrontation Clause error was harmless,

“[t]he correct inquiry is whether, assuming that the damaging potential of cross-examination were fully realized, a reviewing court

might nonetheless say the error was harmless beyond a reasonable

doubt.” We consider “the importance of the witness’ testimony in

the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength

of the prosecution’s case.”

Rodriguez-Martinez, 480 F.3d at 308 (quoting Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986)).

In contrast, Alvarado-Valdez claims the error cannot be harmless if it

might have contributed to the verdict, even taking account ofthe other evidence.

Alvarado-Valdez relies on Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir. 1993),

in which we said the inquiry is whether there is “no reasonable possibility that

the tainted evidence might have contributed to the jury’s verdict of guilt.” 

Van Arsdall did not announce a new harmless-error standard for Confrontation Clause violations. The Court explicitly relied on Chapman for the proposition that Confrontation Clause violations are subjectto harmless error analysis.

Van Arsdall, 475 U.S. at 684. Nevertheless, how the government must meet its

burden of proof is based on what kind of violation is involved.

In Van Arsdall,the Court was concerned with Confrontation Clause violations arising from the denial of a defendant’s right to impeach a witness for bias.

See Van Arsdall, 475 U.S. at 684. The Court’s particular test makes sense in

light ofthat specific Confrontation Clause violation: To determine whether a defendant was harmed by not being able to impeach a witness, it is necessary to

look at what the full exercise of cross-examination could have disclosed. In Lowery, however,the Confrontation Clause violation involved the admission of a videotaped deposition of a six-year-old victim of molestation. See Lowery, 988 F.2d
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at 1366. 

In the context of the instant Confrontation Clause violation, the latter approach is correct. Between Confrontation Clause violations that arise in the

context of the impeachment of a witness for bias and those involving the very

introduction of inadmissible testimony, the right announced in Crawford is

closer to the latter. Accordingly, the government must demonstrate beyond a

reasonable doubt that the tainted evidence did not contribute to the conviction.

B.

Ultimately,this case turns on the way in which the government must meet

its burden by showing that other evidence in the record demonstrates that the

error in admitting Chapa’s testimony was harmless beyond a reasonable doubt.

Our focus is on the possibility of harm arising from Chapa’s testimony and not

necessarily on the possibility of its relationship to other evidence. 

Our task would be difficult were it not for the government’s insistent reliance on the testimony in its closing argument, in light of which we cannot say

the error was harmless. In that argument, the government said,

[L]et’s consider the statement of Cantu and Chapa without reference to [Alvarado-Valdez, Medrano, and Flores]. Okay? What did

Mr Cantu tell you? Well, he told you that in the early part of June

he was approached by Chapa and was asked to find transportation

to move 840 kilos of cocaine. Let’s look at what Mr. Chapa told you.

Mr. Chapa, you heard, at the time of his arrest said, as Agent Garcia said, “Sometime in early may of 1997 I was introduce [sic] to a

man named Paco by my friend Palacios Cantu, and Paco asked me

to help move some 800 kilos of cocaine.” What else did he tell Agent

Garcia? “Well, after the first load of cocaine was successfully delivered to New York, I was again approached by Paco a week later.”

Okay. Let’s take that just in and of itself. Forget everything else

about [Alvarado-Valdez, Medrano, and Flores].

In other words, the government relied on the similarity of Chapa’s and

Cantu’s testimony to prove the conspiracy and, by implication, Alvarado-Valdez’s
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participation in it. We cannot see how the government can conclusively show

that the tainted evidence did not contribute to the conviction, because the government’s closing argument relied on that very evidence. There is no way to determine whether the jury would have convicted Alvarado-Valdez purely on the

basis of Cantu’s testimony or of any of the other evidence. That would require

retrying the case on appeal, at best, or engaging in pure speculation, at worst.

The judgment is VACATED, and this matter is REMANDED for new trial

or other proceedings as appropriate. We need not address the asserted error in

admission of evidence pursuant to Federal Rule of Evidence 404(b), and we do

not comment on the sentence.