United States Court of Appeals

for the Fifth Circuit

No. 18-50981

United States of America, 

Plaintiff—Appellee,

versus

Juan Francisco Trevino Chavez, also known as Kiko, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:11-CR-189-3

Before King, Stewart, and Southwick, Circuit Judges.

Per Curiam:*

Juan Francisco Trevino Chavez, aka “Kiko,” was one of the highestranking commanders in the notorious “Los Zetas” cartel based out of 

Mexico. In 2016, authorities arrested him in Texas. A superseding 

indictment charged him with conspiring to traffic marijuana and cocaine into 

the United States, among other crimes. At Kiko’s trial, the district court, per 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 9, 2020

Lyle W. Cayce

Clerk

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Federal Rule of Evidence 801(d)(2)(E), admitted certain testimony over 

defense counsel’s hearsay objections on the grounds that the testimony 

included co-conspirator statements. Rule 801(d)(2)(E) defines statements by 

a co-conspirator made during and in furtherance of a conspiracy as nothearsay. A jury convicted Kiko on the seven counts he faced. The district 

court then sentenced him to consecutive life sentences. On appeal, Kiko

argues that the district court erred by admitting the testimony under Rule 

801(d)(2)(E). For the reasons that follow, we AFFIRM.

I. FACTS & PROCEDURAL HISTORY

On August 9, 2011, Kiko was initially charged in an indictment with 

one count of conspiracy to possess with intent to distribute marijuana and 

one count of conspiracy to commit money laundering. On May 8, 2018, Kiko 

was the sole defendant charged in a seven-count superseding indictment. It 

accused him of conspiring to traffic marijuana and cocaine into the United 

States, conspiring to use firearms to further the trafficking, and conspiring to 

launder money (all as a leader of “Los Zetas”).1 Kiko pled not guilty and 

proceeded to trial, which began on July 16, 2018. 

Over six days of trial, the Government put on 23 witnesses. On Kiko’s 

instructions, his lawyers objected repeatedly during the Government’s direct 

examination of its witnesses. When a witness would testify as to what another 

1 The specific charges were: Conspiracy to possess marijuana with intent to 

distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); conspiracy to import 

marijuana with intent to distribute in violation of 21 U.S.C. §§ 952 and 960(a)(1) (Count 

2); unlawful distribution of controlled substances extra-territorial in violation of 21 U.S.C. 

§ 959(a) (Count 3); conspiracy to possess cocaine with intent to distribute in violation of 

21 U.S.C. §§ 841(a)(1) and 846 (Count 4); conspiracy to import cocaine with intent to 

distribute in violation of 21 U.S.C. §§ 952 and 960(a)(1) (Count 5); conspiracy to possess 

firearms in furtherance of drug trafficking in violation of 18 U.S.C. § 924(o) (Count 6); and 

conspiracy to launder money in violation of 18 U.S.C. § 1956(h) (Count 7). 

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person said, defense counsel would object to it as hearsay, and the 

Government would argue that it was not hearsay under Rule 801(d)(2)(E).

The district court decided to conditionally admit the challenged testimony 

and delay its ultimate ruling until the Government finished presenting its 

case-in-chief.2 At the close of the Government’s case, the district court 

formally admitted the testimony under Rule 801(d)(2)(E). 

The jury convicted Kiko on all seven counts he faced. A few months 

later, the district court sentenced him to concurrent life sentences on Counts 

1 and 2 (“Group 1”); life sentences on Counts 3, 4, and 5 (“Group 2”) to 

run concurrently with each other but consecutive to the Group 1 life 

sentences; and 20-year sentences on Counts 6 and 7 to run concurrently with 

each other but consecutive to the Group 1 and Group 2 life sentences. 

On appeal, Kiko seeks a new trial on the ground that his convictions 

were improperly tainted by the district court’s erroneous admission of the 

testimony at issue.

II. STANDARD OF REVIEW

We review a district court’s decision to admit testimony under Rule 

801(d)(2)(E) for abuse of discretion. United States v. Fairley, 880 F.3d 198, 

213 (5th Cir. 2018). “[E]rrors in evidentiary rulings are subject to the 

doctrine of harmless error.” United States v. Diaz, 755 F. App’x 378, 382 (5th 

Cir. 2018) (per curiam) (unpublished) (alteration in original) (quoting United 

States v. Cornett, 195 F.3d 776, 785 (5th Cir. 1999)).

2 A district court can delay ruling on the admissibility of conspirator statements 

“through trial or at least through presentation of the government’s case until a 

determination of the existence of the Rule 801(d)(2)(E) predicate facts can be appropriately 

made.” See United States v. Fragoso, 978 F.2d 896, 900 (5th Cir. 1992) (footnote omitted). 

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III. DISCUSSION

As an initial matter, we observe that Kiko does not identify the 

testimony that he argues was erroneously admitted. Instead, he paraphrases 

the testimony or merely provides citations to the trial record. A defendant 

who challenges the improper admission of testimony that potentially includes 

hearsay “must specifically identify the particular statement[s] he is 

challenging.” United States v. Martinez-Perez, 941 F.2d 295, 300 (5th Cir. 

1991). Because Kiko failed to do so, he has likely waived his arguments made 

on appeal. Even if we were to conclude that Kiko has not forfeited his 

arguments, we do not find them persuasive.3

Kiko argues that the district court erred in admitting the challenged

testimony because it consisted of “reports of [Kiko’s] past conduct [] and not 

statements made during and in furtherance of any of the conspiracies.” 

According to Kiko, because the testimony was the only “basis” upon which 

the jury could have found him guilty of the charges, we should remand for a 

new trial. We disagree. 

“Hearsay” is an out of court statement offered to prove the truth of 

the matter asserted. Fed. R. Evid. 801(c). An opposing party statement is 

not hearsay if offered against the party and “was made by the party’s 

coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid.

801(d)(2)(E). “Under Rule 801(d)(2)(e), the proponent of admittance must 

prove by a preponderance of the evidence (1) the existence of the 

conspiracy[,] (2) the statement was made by a co-conspirator of the party, (3) 

the statement was made during the course of the conspiracy, and (4) the 

3 Our analysis is limited to testimony challenged in Kiko’s opening brief. While 

Kiko disputes the admissibility of additional testimony in his reply brief, he has waived his 

arguments challenging that testimony. See United States v. Bowen, 818 F.3d 179, 192 n.8 (5th 

Cir. 2016) (noting that “any issue not raised in an appellant’s opening brief is forfeited”).

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statement was made in furtherance of the conspiracy.” Cornett, 195 F.3d at

782. “The content of the statement may be considered as part of the analysis, 

but there must also be independent evidence establishing the factual 

predicates for Rule 801(d)(2)(E).” United States v. El-Mezain, 664 F.3d 467, 

502 (5th Cir. 2011).

Moreover, “[t]o be in furtherance of the conspiracy, the statement 

must advance the ultimate objects of the conspiracy.” United States v. Ebron, 

683 F.3d 105, 135 (5th Cir. 2012). “[C]onversations that represent ‘mere idle 

chatter’ or which are mere narratives of past conduct are not in furtherance 

of the conspiracy because the statement and the conversation were not 

intended to further the conspiracy, regardless of whether an individual coconspirator was implicated in the conversation.” Id. at 136 (quoting Cornett, 

195 F.3d at 783–84 (5th Cir. 1999)). However, the “in furtherance” 

requirement of Rule 801(d)(2)(E) “is not to be construed too strictly lest the 

purpose of the exception be defeated.” United States v. Broussard, 80 F.3d 

1025, 1039 (5th Cir. 1996).

We now turn to the admissibility of the challenged testimony. First, 

Kiko identifies testimony that he contends was improperly admitted under 

Rule 801(d)(2)(E), but which is predicated on his own statements or eyewitness observations. Statements made by and offered against a party are not 

hearsay. See Fed. R. Civ. P. 801(d)(2)(A).And testimony “based on the 

witnesses’ personal knowledge and observations” does not include hearsay. 

United States v. Potwin, 136 F. App’x 609, 611 (5th Cir. 2005) (per curiam) 

(unpublished). The trial judge clearly did not err in admitting this testimony.

Kiko also challenges testimony comprised of statements made by coconspirators pertaining to the ongoing distribution and supply of narcotics, 

including a source of funding for drug trafficking. The district court plainly 

did not err in admitting this testimony as well.

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Kiko further disputes the admissibility of testimony that included

statements designed “to encourage loyalty and obedience among the 

conspirators.” See United States v. Flores, 63 F.3d 1342, 1377 (5th Cir. 1995).

And he challenges testimony that incorporated “statements which are 

puffing or boasts, but which are used to obtain the confidence of the person 

toward whom the statement is directed.” See United States v. Johnson, 872 

F.2d 612, 623 (5th Cir. 1989). Yet these statements were made by coconspirators during and in furtherance of a drug conspiracy. See Flores, 63 

F.3d at 1377; Johnson, 872 F.2d at 623. All of the testimony was therefore 

properly admitted.

Finally, Kiko disputes the admissibility of testimony from Luis Miguel 

Carreon4 that his uncle had expressed concern about Carreon “knowing” 

Kiko and “being around” him. The Government argues that the Uncle’s 

statement was admissible under Rule 801(d)(2)(E) since “Carreon had 

previously testified that his uncle was associated with the Zetas” and “the 

statement was made when drugs were being delivered to the uncle’s ranch.” 

But dissuading someone from associating with a party to a conspiracy does 

not further the conspiracy. And no other exclusion under Rule 801 or

exception under Rule 803 to the hearsay rule clearly applies. 

Assuming arguendo the district did err in admitting this testimony, 

that error was harmless. “Under [the harmless error] doctrine, ‘[a]ny error, 

defect, irregularity, or variance that does not affect substantial rights must be 

disregarded.’” Diaz, 755 F. App’x at 382 (quoting Fed. R. Crim. P.

52(a)). “As a general rule, an error affects a defendant’s substantial rights 

only if the error was prejudicial. Error is prejudicial if there is a reasonable 

probability that the result of the proceedings would have been different but 

4 Carreon distributed marijuana for the Zetas. 

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for the error.” United States v. Huntsberry, 956 F.3d 270, 283 (5th Cir. 2020)

(internal citation omitted) (quoting United States v. Johnson, 943 F.3d 214, 

223 (5th Cir. 2019)). “The burden of proving harmlessness falls to the 

Government.” Diaz, 755 F. App’x at 382 (citing United States v. Olano, 507 

U.S. 725, 741 (1993)).

The Government presented ample evidence at trial supporting the

jury’s guilty verdict, including but not limited to: testimony from a witness 

who observed Kiko arrive at a ranch armed and in possession of thousands of 

pounds of marijuana, testimony from another witness that he sent drug 

proceeds to Kiko, and testimony from yet another witness that he saw Kiko 

at a high-level meeting of cartel leaders in which the distribution of cocaine 

was discussed.5 “Given the voluminous evidence of [Kiko’s] guilt as 

presented at trial, we agree with the Government that any purported error 

with respect to” the admission of testimony predicated on hearsay “could 

not have affected the outcome of his proceedings.” See United States v. 

Johnson, No. 18-11602, 2020 WL 4493243, at *3 (5th Cir. Aug. 4, 2020) (per 

curiam) (unpublished). Accordingly, to the extent the district court erred in 

admitting the abovementioned testimony, we hold that the error was 

harmless.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

5As noted above, we determine that, pursuant to Rule 801(d)(2)(E), this testimony

does not include hearsay.

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