IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50653

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CESAR OBREGON-REYES, also known as Chino; RAFAEL VEGA, also

known as Rafa, 

 Defendants - Appellants.

Appeals from the United States District Court 

for the Western District of Texas

USDC No. 3:10-cr-00599-DB-4

Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges.

PER CURIAM:*

Appellants Cesar Obregon-Reyes (“Obregon”) and Rafael Vega (“Vega”)

were convicted by a jury of: (1) kidnapping, and aiding and abetting, in violation

of 18 U.S.C. § 1201(a)(1) and 18 U.S.C. § 2; (2) conspiracy to kidnap, kill or maim

in a foreign country, in violation of 18 U.S.C. § 956(a); (3) conspiracy to use an

interstate commerce facility in commission of murder for hire, in violation of 18

U.S.C. § 1958; and (4) interstate and foreign travel in aid of racketeering, and

aiding and abetting, in violation of 18 U.S.C. § 1952 and 18 U.S.C. § 2. Obregon

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2013

Lyle W. Cayce

Clerk

 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.

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and Vega challenge their convictions and sentences of life imprisonment. We

AFFIRM.

I.

The facts of this case involve the kidnapping and murder of a drug runner

for the Sinaloa Cartel, an organized and violent Mexican drug-trafficking

organization. On September 3, 2009, Sergio Saucedo (“Saucedo”) and his wife,

Maria Longoria (“Longoria”), left their home to run errands and to pick up their

children. When they returned home at approximately 2:45pm, they encountered

three men inside who were brandishing guns and wearing black T-shirts, baggy

jean shorts, black tennis shoes and baseball caps. At least two of the men were

wearing black gloves.

One of the men instructed Longoria to put her children inside her son’s

room. One of the other men told Saucedo to get down on the floor. As Longoria

was taking the children to the room, she tried to dial 911 on her cell phone. One

of the men saw her, took the phone and instructed her to go into the living room. 

He then told her to get on the floor. While she was on the floor, the men used

duct tape to tie her hands and feet and put tape over her mouth. They then

went over to Saucedo, tied his hands and put tape over his mouth. Longoria

heard one of the men make a phone call. During that call, the man said “Neuro,

we have them.” The men then told Saucedo to stand up, at which time two of the

men took him out the back door. The third man went into the room where the

children were located, grabbed Longoria’s purse and walked out the back door.

Longoria then heard a gunshot and her husband screaming for help. 

Longoria dragged herself to the window near the door and looked outside. 

Longoria saw the two men holding Saucedo and he was still screaming. As the

third man was about to hit Saucedo in the head with a gun, the man turned in

Longoria’s direction and appeared to see her at the window, at which time he

stopped. Longoria then closed the blinds and proceeded to remove the tape from

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her hands and feet. When she made it outside, the three men and her husband

were gone. At that time, Longoria saw her neighbor, “Erika,” who was already

calling 911. Longoria told Erika to tell them that her husband had been

kidnapped.

A sheriff’s officer arrived shortly thereafter and the investigation began. 

During the investigation, Longoria could not identify Obregon or Vega as being

involved in the kidnapping. Multiple witnesses testified to seeing and hearing

events from the kidnapping. Only one witness—Olga Martinez (“Martinez”), a

school bus-driver in that neighborhood—was able to identity Obregon as being

involved in the kidnapping. Martinez testified that when she reached a nearby

intersection on the date and time of the kidnapping, she saw three men trying

to put another man into a maroon Expedition that did not have any license

plates. Martinez heard the man yelling for help, and observed that the man’s

head was bleeding and his hands were taped. Martinez identified Obregon as

one of the two men who were holding the man as they tried to put him into the

vehicle. 

Saucedo was subsequently killed and his body was found in Juarez,

Mexico, five days after his kidnapping. Saucedo’s hands had been amputated. 

By superceding indictment, together with a third co-defendant, Omar

Obregon-Ortiz (“Taylor”), Obregon and Vega were charged and found guilty of:

(1) kidnapping, and aiding and abetting, in violation of 18 U.S.C. § 1201(a)(1)

and 18 U.S.C. § 2; (2) conspiracy to kidnap, kill or maim in a foreign country, in

violation of 18 U.S.C. § 956(a); (3) conspiracy to use an interstate commerce

facility in commission of murder for hire, in violation of 18 U.S.C. § 1958; and (4)

interstate and foreign travel in aid of racketeering, and aiding and abetting, in

violation of 18 U.S.C. § 1952 and 18 U.S.C. § 2. The district court sentenced both

Obregon and Vega to life imprisonment. Obregon and Vega timely appealed

their judgments of conviction and sentences.

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II.

Obregon raises two claims on appeal. First, Obregon contends that the

district court’s admission of extrinsic evidence of a prior home invasion that he

committed to prove identity in the instant case was error. Second, he argues

that the district court’s jury instruction on similar acts was improper. Vega

raises three different claims on appeal. First, Vega challenges the sufficiency of

the evidence to support his convictions. Second, he argues that the district court

improperly excluded statements that his former attorney made to him as

hearsay. Third, Vega claims that the district court’s denial of his motion to

remove a juror for bias after the commencement of trial was error. We address

each of these arguments in turn. 

A.

Obregon’s first claim on appeal is that it was error for the district court to

admit evidence of a prior home invasion that he committed to prove his identity

in the home invasion at issue in this case (“the September 3, 2009, home

invasion”). The district court overruled Obregon’s objection to the admission of

this extrinsic evidence under Rule 404(b) of the Federal Rules of Evidence. 

“We review the district court’s admission of extrinsic evidence over a

[Rule] 404(b) objection under a ‘heightened’ abuse of discretion standard.” 

United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003). Under this

heightened standard, “we do not reverse for erroneous admissions under Rule

404(b) if the error was harmless.” United States v. Templeton, 624 F.3d 215, 221

(5th Cir. 2010). “An error is harmless when it does not affect the substantial

rights of a party. The government has the burden of establishing harmlessness

beyond a reasonable doubt.” United States v. McCall, 553 F.3d 821, 827 (5th Cir.

2008).

Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

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occasion the person acted in accordance with the character,” but “[t]his evidence

may be admissible for another purpose, such as proving [identity].” Fed. R. Evid.

404(b). We analyze Rule 404(b) admissions under the two-step test articulated

in United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). First, we must

determine whether “the extrinsic evidence is relevant to an issue other than the

defendant’s character.” Id. at 911. Second, we must evaluate whether the

evidence possesses “probative value that is not substantially outweighed by its

undue prejudice.” Id. at 911.

The district court did not abuse its discretion in admitting extrinsic

evidence of the prior home invasion that Obregon committed. The first step of

the Beechum analysis is satisfied because extrinsic evidence of the prior home

invasion was relevant to prove identity, which Obregon put at issue by disputing

his involvement in the September 3, 2009, home invasion. See Beechum, 582

F.2d at 912 n.15 (“[T]he identity of the defendant may be established by evidence

of offenses extrinsic to the indictment.”); Fed. R. Evid. Rule 404(b) (providing

that “evidence of a crime, wrong, or other act” may be admissible to prove

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.”); United States v. Torres-Flores, 827 F.2d 1031,

1034 (5th Cir. 1987) (holding that prong one of the Beechum test was satisfied

when the government offered extrinsic evidence to prove identity, which the

defendant contested, because the extrinsic evidence was “relevant to an issue

other than propensity”).

Turning to step two of the Beechum analysis, we make a “commonsense

assessment of all the circumstances surrounding the extrinsic offense” to

determine whether its probative value is not substantially outweighed by undue

prejudice. Id. at 914. When making this assessment, we consider several

factors, including: (1) the government’s need for the extrinsic evidence, (2) the

similarity between the extrinsic and charged offenses, and (3) the amount of

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time separating the two offenses. United States v. Sanchez, 988 F.2d 1384, 1394

(5th Cir. 1993) (citing Beechum, 582 F.2d at 915). 

The balance of these factors supports the conclusion that the probative

value of extrinsic evidence of the prior home invasion was not substantially

outweighed by undue prejudice. As to the first factor, the government needed

the extrinsic evidence to corroborate Martinez’s testimony, which Obregon

“fiercely contested” because it identified him at the scene of the September 3,

2009, home invasion. As to the second factor, the facts of the prior home

invasion and the September 3, 2009, home invasion were substantially similar. 

Both home invasions involved entry into the residence through a window, three

men who wore wearing black clothing, and the brandishing of a pistol. Both

homes were also ransacked in a similar fashion: the bottom dresser drawers

were left open; the upper drawers were closed or almost closed; the contents of

the drawers were thrown on the floor; air vents were removed; furniture was

overturned; and the lining under the furniture was cut or removed. A three-liter

bottle of Coke was also found in both homes, and the victims testified that the

bottle was not there before the invasion. A plastic glove containing Obregon’s

DNA was found in the prior home invasion, and Longoria testified that she saw

two of the kidnappers wearing gloves. In both home invasions, the adult victims

were separated from their children inside of the house before being tied with

tape. Both home invasions also involved an adult male victim who was involved

in drug trafficking and believed to have lost or stolen a quantity of marijuana. 

Finally, as to the third factor, the prior home invasion took place only one month

prior to the September 3, 2009, home invasion. Therefore, the district court did

not abuse its discretion in admitting extrinsic evidence of the prior home

invasion. 

Obregon’s second claim on appeal challenges the district court’s jury

instruction on similar acts. Because “[d]istrict courts enjoy substantial latitude

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in formulating a jury charge . . . we review all challenges to . . . jury instructions

for abuse of discretion. United States v. Webster, 162 F.3d 308, 321–22 (5th Cir.

1998). Under this standard, “we consider whether the instruction, taken as a

whole, is a correct statement of law and whether it clearly instructs jurors as to

the principles of law applicable to the factual issues confronting them.” Ebron,

683 F.3d at 151. 

First, Obregon argues that the jury instruction on similar acts was an

improper statement of law because, in his view, the instruction conveyed to the

jury that it must find that he committed the September 3, 2009, home invasion

because he committed the prior home invasion. The language of the jury

instruction does not support Obregon’s argument. The instruction stated

explicitly that the jurors “may”—not “must”—use extrinsic evidence of the prior

home invasion to help them decide whether Obregon was involved in the

September 3, 2009, home invasion. 

1

Second, Obregon argues that the jury instruction was improper because

it veered from the Fifth Circuit’s pattern instruction on similar acts. The

pattern instruction on similar acts, however, does not address identity, which

was at issue in the instant case. Therefore, the district court did not abuse its

discretion in veering from the pattern instruction to instruct jurors as to the

“principles of law applicable to the factual issues confronting them.” Id. 

B.

1. 

Vega’s first claim on appeal challenges the sufficiency of the evidence in

The jury instruction stated: “You heard testimony that Defendant Cesar Obregon- 1

Reyes committed acts other than the ones charged in the superceding indictment. If you find

that Defendant Cesar Obregon-Reyes did commit those other acts you may use this evidence

to help you decide whether the similarity between the acts previously committed and the ones

charged in this case suggest that the same person committed all of them. However, you may

not consider this evidence for any other purpose.” 

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support of each of his convictions. We review Vega’s challenges de novo because

he properly preserved them in the district court. United States v. Grant, 683

F.3d 639, 642 (5th Cir. 2012). Our review of the sufficiency of the evidence is

“highly deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869

(5th Cir. 2002). “[V]iewing the evidence in the light most favorable to the

prosecution,” we consider whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979); United States v. Delgado, 672 F.3d 320, 358 (5th Cir.

2012) (en banc) (quoting Jackson, 443 U.S. at 319). “It is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt.” United States v. Lage,

183 F.3d 374, 382 (5th Cir. 1999). However, “a verdict may not rest on mere

suspicion, speculation, or conjecture, or on an overly attenuated piling of

inference on inference.” Delgado, 672 F.3d at 362 (citations and internal

quotations omitted). We “accept[ ] all credibility choices and reasonable

inferences made by the trier of fact which tend to support the verdict,” United

States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997), and resolve “any conflicts

in the evidence . . . in favor of the verdict.” United States v. Duncan, 919 F.2d

981, 990 (5th Cir. 1990). 

We first look to Vega’s conviction for kidnapping in violation of 18 U.S.C.

§ 1201(a)(1). To establish this offense, the government must show: “(1) the

transportation in interstate [or foreign] 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. Garza-Robles, 627 F.3d 161, 166 (5th

Cir. 2010); § 1201(a)(1). Vega disputes only the fourth element. 

2

Vega was also convicted of aiding and abeting, in violation of 18 U.S.C. § 2, with 2

respect to the kidnapping. To prove the crime of aiding and abetting under 18 U.S.C. § 2, the

government must show that: (1) the individual associated with the criminal venture, (2)

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Vega primarily argues that the government cannot satisfy this fourth

element because he was allegedly in custody at Dismas Charities halfway house

on the day and time of Saucedo’s kidnapping. The halfway house records

indicate that Vega was present at the 3:00pm headcount on September 3, 2009. 

The government countered with evidence that the halfway house records

contained numerous discrepancies, and that some employees had been fired

previously for making false record entries. The government also proffered

evidence showing that an employee of the halfway house forged the initials of

another employee on the sheet for the 3:00pm headcount on the day that

Saucedo was kidnapped. Moreover, several witnesses testified about the lax

monitoring procedures at the halfway house and the different ways that

residents could leave the halfway house and return without their absence being

detected. A former resident testified that he had seen Vega leave the premises

surreptitiously more than once. Resolving all credibility determinations and

conflicts in the evidence in favor of the jury’s verdict, we defer to the jury’s

apparent determination that the halfway house records were unreliable. See

Asibor, 109 F.3d at 1030; Duncan, 919 F.2d at 990. 

Viewing the record as a whole, we conclude that there is sufficient

evidence from which a rational trier of fact could infer that Vega “knowingly and

willfully” participated in Saucedo’s kidnapping. “James Smith” (“Smith”)

testified that he had been friends with Saucedo since childhood and that both of

them had worked in the drug business together. Both Smith and Saucedo’s

stepfather testified that immediately prior to his kidnapping, Saucedo received

threats resulting from a dispute with members of the Sinaloa Cartel over a load

of marijuana that law enforcement had seized, but the cartel members thought

purposefully participated in the crime, and (3) sought by his actions for it to succeed. See

United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001). On appeal, Vega does not dispute

any of these elements. 

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he had stolen. Saucedo’s stepfather further testified that he observed Saucedo

speaking to Sinaloa Cartel members—once on the cell phone, and another time

in person—at two separate barbecues before the kidnapping. On both occasions,

Saucedo appeared nervous. A third witness, “Alan White” (“White”), testified

that he overheard a conversation between two Saucedo Cartel members about

whether Vega would carry out a “mission” for the cartel. Sometime after, White

saw Vega driving a Jeep. 

Further, the record contains testimony from several witnesses who heard

Vega make incriminating statements about Saucedo’s kidnapping. White

testified to hearing Vega say “we picked him up,” and that he was given “7,000,

a Jeep, and some cocaine” by a Sinaloa Cartel member in charge of the Juarez

territory, during a conversation in which Obregon was only a few feet away at

a New Year’s Eve party in 2009. White also testified that while riding with Vega

in the car the following day, Vega said that he was not afraid to do anything to

anyone and that he had already done it once. A fourth witness, “John Brown”

(“Brown”), testified to overhearing Vega say that he had “busted a mission,”

“picked someone up,” “went for him,” and “took [him] out,” at different party at

Obregon’s trailer in October or November 2009 that Vega attended. Brown

further testified that Vega then pointed or motioned to Obregon and the third

co-defendant Taylor, and said something to the effect of “Right, guys? We went

for him.” Vega disputes the credibility and accuracy of White and Brown’s

testimony, but we accept all credibility choices and resolve any conflicts in the

evidence in favor of the jury’s verdict. Asibor, 109 F.3d at 1030; Duncan, 919

F.2d at 990. Based on these incriminating statements, in combination with the

evidence stated above, a rational trier of fact could have inferred that the

government satisfied the fourth element of the kidnapping offense under

§ 1201(a)(1) beyond a reasonable doubt. Therefore, we conclude that the

evidence was sufficient to support his conviction under § 1201(a)(1). 

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Next, we turn to Vega’s conviction for conspiracy to kill, kidnap, or maim

in a foreign country in violation of 18 U.S.C. § 956(a). To obtain a conviction for

conspiracy to kill, kidnap, or maim in a foreign country, the government must

prove: “(1) the defendant agreed with at least one person to commit murder [or

to kidnap or maim another person]; (2) the defendant willfully joined the

agreement with the intent to further its purpose; (3) during the existence of the

conspiracy, one of the conspirators committed at least one overt act in

furtherance of the object of the conspiracy; and (4) at least one of the

conspirators was within the jurisdiction of the United States when the

agreement was made.” United States v. Wharton, 320 F.3d 526, 537–38 (5th Cir.

2003). 

Vega claims that the evidence was insufficient to support his conviction for

conspiracy to kill, kidnap, or maim in a foreign country on the grounds that the

evidence does not show his agreement to kidnap Saucedo. We disagree. There 3

is ample evidence in the record from which a rational trier of fact could infer that

Vega agreed to kidnap Saucedo. As detailed above, White and Brown testified

that Vega made incriminating statements on separate occasions about Saucedo’s

kidnapping. Moreover, a witness who was familiar with the Sinaloa Cartel,

Alvaro David Rosales (“Rosales”), testified that if a marijuana load had been

stolen, as opposed to seized, then the life of the person responsible for it would

be in danger. Smith testified that Saucedo was concerned that members of the

Sinaloa Cartel had turned against him because they believed that he had stolen

Vega also argues that the evidence was insufficient to support his conviction for

3

conspiracy to kill, kidnap, or maim in a foreign country because the evidence does not show

a conspiracy to commit murder. This argument is irrelevant because the government can

satisfy the elements of conspiracy to kill, kidnap, or maim in a foreign country without

evidence showing a conspiracy to commit murder—the plain terms of § 956(a) punish

conspiracy to commit kidnapping. See 18 U.S.C. § 956(a)(1) (punishing conspiracy “to commit

at any place outside the United States an act that would constitute the offense of murder,

kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the

United States.”).

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the load of marijuana that he was responsible for, which was seized by law

enforcement. Saucedo’s stepfather also testified that Saucedo told him that

Sinaloa Cartel members were after him because of the seized marijuana load,

and that Saucedo did not want to go to Juarez because he was afraid that cartel

members would kill him. Based on this testimony from several witnesses, we

conclude that a rational trier of fact could infer that Vega conspired to kidnap

Saucedo. Therefore, the evidence was sufficient to support Vega’s conviction for

conspiracy to kill, kidnap, or maim in a foreign country. 

We turn then to Vega’s conviction for conspiracy to commit murder-for-hire

in violation of 18 U.S.C. § 1958(a). To obtain a conviction for murder-for-hire,

the government must show: “(1) traveling or causing another to travel in

interstate or foreign commerce . . . , (2) with intent that murder be committed

. . . , (3) as consideration for the receipt of pecuniary value.” United States v.

Sharpe, 193 F.3d 852, 863 n.6 (5th Cir. 1999); § 1958(a). Moreover, to establish

the conspiracy, the government must show: “‘(1) an agreement by two or more

persons to achieve the unlawful purpose of [interstate] murder-for-hire; (2) the

defendant’s knowing and voluntary participation in the agreement; and (3) an

overt act committed by any one of the conspirators in furtherance of the

conspiratorial object.’” United States v. Blackthorne, 378 F.3d 449, 453 (5th Cir.

2004) (quoting United States v. Hernandez, 141 F.3d 1042, 1053 (11th Cir. 1998))

(alteration in original). 

Vega argues that the evidence is insufficient to support his conviction for

conspiracy to commit murder-for-hire on the grounds that there was no evidence

showing an agreement to commit murder. We reject this argument. Several

witnesses testified to incriminating statements that Vega made on separate

occasions. In particular, Brown testified to hearing Vega say that he had

“busted a mission,” “picked someone up,” “went for him,” and “took [him] out.” 

White also testified to overhearing Vega say that a Sinaloa Cartel member in

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charge of the Juarez territory had given him “$7,000, a Jeep, and some cocaine.” 

Moreover, Smith, White, and Saucedo’s stepfather testified to Saucedo’s

involvement with the cartel, his conflict with its members over the seized

marijuana load, and his fear that he would be killed because cartel members

thought he had stolen it. Smith further testified that members of the cartel who

were responsible for drug trafficking in Juarez were involved in Saucedo’s

specific drug trafficking operation. Saucedo’s body was found in Juarez

approximately five days after he was kidnapped. From these facts, we conclude

that a rational trier of fact could infer Vega’s agreement to commit murder. 

Accordingly, the evidence was sufficient to support his conviction for conspiracy

to commit murder-for-hire. 

Vega’s last conviction was for interstate and foreign travel in aid of

racketeering, and aiding and abetting, in violation of 18 U.S.C. § 1952 and 18

U.S.C. § 2. To obtain this conviction, the government was required to show:

(1) Vega, or a person aided and abetted by Vega, traveled in foreign commerce

or used a facility in interstate or foreign commerce, (2) with the intent to commit

any crime of violence to further the unlawful activity of narcotics and controlled

substance trafficking, and that (3) Vega, or a person aided and abetted by Vega,

thereafter performed or attempted to perform a crime of violence. See § 1952;4

 Title 18 U.S.C. § 1952 reads in pertinent part: 4

(a) Whoever travels in interstate or foreign commerce or

uses the mail or any facility in interstate or foreign

commerce, with intent to –

(1) distribute the proceeds of any unlawful activity;

(2) commit any crime of violence to further an

unlawful activity;

(3) otherwise promote, manage, establish, carry on,

or facilitate the promotion, management,

establishment, or carrying on, of any unlawful

activity, and thereafter performs or attempts to

perform –

(A) an act described in paragraph (1) or

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United States v. Yamin, 868 F.2d 130, 134 (5th Cir. 1989) (citing United States

v. Stovall, 825 F.2d 817, 827 (5th Cir. 1987)) (affirming that to convict a

defendant as an aider and abetter, the government must show that the

defendant committed an act that contributed to the execution of the criminal

activity and that he intended to aid in its commission). 

Vega raises two meritless challenges to the sufficiency of the evidence in

support of his conviction for interstate and foreign travel in aid of racketeering,

and aiding and abetting. First, he argues that there is insufficient evidence to

show his involvement with Saucedo’s kidnapping. As we concluded above, a

rational trier of fact could infer Vega’s involvement with Saucedo’s kidnapping

based on the record. Second, Vega contends that the Dismas Charities halfway

house records show that he was present at the halfway house on the day and

approximate time of Saucedo’s kidnapping. The government, however, proffered

evidence from which a rational trier of fact could infer that the records were

unreliable. 

Therefore, we conclude that the evidence was sufficient to support Vega’s

convictions for kidnapping; conspiracy to kill, kidnap, or maim in a foreign

country; conspiracy to commit murder-for-hire; and interstate and foreign travel

in aid of racketeering, and aiding and abetting. 

2.

Vega’s second claim on appeal challenges the district court’s exclusion of

statements made to him by his former attorney as hearsay. We review the

(3) shall be fined under this title,

imprisonment not more than 5 years, or

both; or 

(B) an act described in paragraph (2)

shall be fined under this title, imprisoned

for not more than 20 years, or both, and if

death results shall be imprisoned for any

term of years or for life.

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district court’s evidentiary rulings for abuse of discretion. United States v. De

Leon, 170 F.3d 494, 497 (5th Cir. 1999). If abuse of discretion occurred, then the

exclusion of evidence is subject to harmless-error analysis. United States v.

Haese, 162 F.3d 359, 364 (5th Cir. 1998). Under harmless-error review, reversal

is not required unless there is a reasonable probability that the improperly

excluded evidence contributed to the conviction. See United States v. El-Mezain,

664 F.3d 467, 526 (5th Cir. 2011); United States v. Williams, 957 F.2d 1238, 1242

(5th Cir. 1992). 

Vega’s former attorney would have testified that he had disclosed details

of the offenses at issue to Vega based on information in the search warrant and

the investigative reports. According to Vega, his former attorney’s testimony

rebuts the government’s claim that Vega’s knowledge of the offenses could only

derive from his actual involvement. In support of its position, the government

proffered a recorded conversation between Vega and Obregon in a police van

that occurred after Vega’s discussions with his former attorney. In the prison

van, Vega discussed the evidence in the instant case with Obregon, instructed

Obregon on how to coordinate their stories to law enforcement, and referenced

specific members of the Sinaloa Cartel. 

Rule 801(c) of the Federal Rules of Evidence defines hearsay as “a

statement, other than one made by the declarant while testifying at trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.

Evid. 801(c). In offering his former attorney’s testimony, Vega attempted to

show his source of knowledge of the details of the offenses at issue. He did not

offer the testimony to prove the truth of the matter asserted, namely the truth

of the details of the offenses that his former attorney disclosed to him. 

Therefore, we agree with Vega that the district court improperly excluded his

former attorney’s testimony as hearsay. See United States v. Parry, 649 F.2d

292, 295 (5th Cir. 1981) (“Using an out-of-court utterance as circumstantial

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evidence of the declarant’s knowledge of the existence of some fact, rather than

as testimonial evidence of the truth of the matter asserted, does not offend the

hearsay rule.”); see also 2 McCormick on Evidence § 249 (6th ed. 2006) (“A

statement that D made a statement to X is not subject to attack as hearsay when

its purpose is to establish the state of mind thereby induced in X, such

as . . . having knowledge.”). 

Vega argues that this error was not harmless, alleging that his knowledge

of the offenses was an important piece of evidence supporting his guilt for the

offenses in the instant case. His knowledge of the offenses, however, was not the

only evidence supporting his guilt. As detailed above, several witnesses testified

to incriminating statements that Vega made about Saucedo’s kidnapping. White

testified to hearing Vega say “we picked him up,” and that a Sinaloa Cartel

member in charge of the Juarez territory gave him “7,000, a Jeep, and some

cocaine,” at a New Year’s Eve Party in December 2009. White also testified that

on the following day, Vega said that he was not afraid to do anything to anyone

and that he had already done it once. Brown testified to overhearing Vega say

at a different party in November 2009 that he had “busted a mission,” “picked

someone up,” “went for him,” and “took [him] out.” Brown further testified that

Vega then pointed or motioned to Obregon and the third co-defendant, Taylor,

and said “Right, guys? We went for him.” 

Moreover, Smith testified that he and Saucedo had worked in the drug

business together. Smith also testified that members of the Sinaloa Cartel who

were responsible for drug trafficking in Juarez were involved in Saucedo’s

specific drug trafficking operation. Saucedo’s body was found in Juarez

approximately five days after he was kidnapped. Both Smith and Saucedo’s

stepfather testified that prior to his kidnapping, Saucedo received threats

resulting from a dispute with members of the Sinaloa Cartel over a load of

marijuana that law enforcement had seized, but that cartel members thought he

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had stolen. Saucedo’s stepfather further testified that he observed Saucedo

speaking to Sinaloa Cartel members at two separate barbecues, and that

Saucedo seemed nervous during and after both conversations. White also

testified that he heard a conversation between two Saucedo Cartel members

about whether Vega would carry out a mission. Sometime after the

conversation, White saw Vega driving a Jeep. 

We conclude that a rational trier of fact could have viewed the testimony

of the several witnesses—many of whom testified to events that occurred before

the alleged conversations between Vega and his former attorney—as credible to

support the charges against him beyond a reasonable doubt. Therefore, the

district court’s exclusion of Vega’s former attorney’s testimony was harmless

error in light of the other evidence presented at trial. See United States v. Bell,

367 F.3d 452, 468 (5th Cir. 2004) (noting that the appellate court “‘must be

convinced beyond a reasonable doubt that the error was harmless in light of the

other evidence presented at trial’”) (quoting United States v. Vejar-Urias, 165

F.3d 337, 340 (5th Cir. 1999)). 

3. 

Vega’s last claim on appeal is that the district court’s denial of his motion

to excuse a juror for potential bias after the commencement of trial was error. 

After several witnesses had testified, the government advised the district court

that Saucedo’s mother knew one of the jurors. The government also notified the

court that the juror was the neighbor of the Saucedo family for a brief time when

Saucedo was one year old, and that since then, the juror had exchanged

greetings withSaucedo’s mother. The government further advised the court that

it appeared that the juror recognized Saucedo’s sister when the juror entered the

courtroom, and might have had a conversation with her a few months before

trial. 

Soon after being advised of this information, the district court held a bench

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conference in which the juror in question was brought before the court. Under

questioning by the court, the juror stated that she knew the Saucedo family by

face and by name, and denied ever being neighbors with the Saucedo family. 

When defense counsel asked the juror about her familiarity with Saucedo’s

sister, the juror, who was an employee of the Medicaid office, stated that she

went through Saucedo’s sister application for Medicaid a few months before trial. 

The district court asked the juror whether her familiarity with the Saucedo

family would influence her ability to be fair and impartial, and the juror

responded that it would not. At the conclusion of the bench conference, the

district court stated that it would consider defense counsel’s motion to remove

the juror for bias, and ultimately denied the motion. 

The district court “is afforded broad discretion in determining the

impartiality of jurors; it is in the best position to observe their demeanor and

credibility.” United States v. Graves, 5 F.3d 1546, 1554 (5th Cir. 1993) (citing

United States v. Hinojosa, 958, F.2d 624, 631 (5th Cir. 1992)). “Accordingly, a

rule respecting such impartiality will not be set aside ‘absent a clear abuse of

discretion.’” Id. (quoting Hinojosa, 958 F.2d at 631). The record shows that the

district court carefully considered the juror’s potential bias after holding a bench

conference in which both the government and defense counsel had ample

opportunity to question the juror. Moreover, our precedent supports the district

court’s conclusion that the relationship between the juror and Saucedo’s family

was too attenuated to mandate the removal of the juror. See, e.g., Celestine v.

Blackburn, 750 F.2d 353, 358 (5th Cir. 1984) (affirming a trial judge’s refusal to

strike a juror for bias in a murder trial when the juror knew both the

prosecuting attorney and was friends with the granddaughter of the murder

victim). In light of these facts and our precedent, we cannot say that the district

court’s consideration and ultimate denial of Vega’s motion to exclude the juror

was a clear abuse of discretion. 

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III.

For the foregoing reasons, Obregon and Vega’s convictions and sentences

are AFFIRMED.

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