United States v. Zacarias

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-50482 Summary Calendar _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN CARLOS ZACARIAS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas (EP-99-CR-1642-H) _________________________ June 1, 2001

Before SMITH, BENAVIDES, and DENNIS, U.S.C. § 1203. Finding no sentencing error, Circuit Judges. and that any error in excluding evidence was harmless, we affirm. JERRY E. SMITH, Circuit Judge:* I. Juan Zacarias appeals his conviction of, and Zacarias was convicted of taking part in the sentence for, hostage taking in violation of 18 kidnaping of Leonard Mickens. The kidnaping occurred when Mickens drove his prospective brother-in-law, Mario Sanchez, to a house in * Pursuant to 5TH CIR. R. 47.5, the court has Ciudad Juarez, Mexico. Mickens testified that determined that this opinion should not be published shortly before midnight, Mario Sanchez asked and is not precedent except under the limited his sister, Erica Sanchez, to drive him to circumstances set forth in 5TH CIR. R. 47.5.4.

Juarez, but Mickens volunteered to drive, be- told Mickens that he also wanted the title to cause he thought it was too late for Erica to Mickens’s Isuzu Rodeo. make the trip. Mickens testified that the next day he, Juan, Mickens drove to a house that Sanchez di- Chuy, and two men with guns went to a rected him to in Juarez, just across the border restaurant in Juarez, where they discussed ar- and not far from the Zaragoza Bridge. Once rangements for getting the title and money. there, Mickens waited in his truck while San- Mickens thought about running away at that chez engaged in a long conversation with an point but did not, because of the presence of unidentified man outside the house. Sanchez the two men with guns who were “body and the man then went into the house. guarding” him. Eventually, Mickens became impatient and went to the house to see whether Sanchez was Instead, Mickens offered to cross the ready to leave. border into the United States, get the money and title, and return. Unsurprisingly, his When he went inside the house, Mickens captors declined this offer. Instead, they let saw seven to ten men with guns. He tried to Mickens place a telephone call from a pay leave, but the men pushed him back into the telephone to his friend Rod Redic in El Paso. house and restrained him with tape. Redic testified that he received a call at his girlfriend’s house from a person wanting Mickens learned later that the men “$5,000 and title to the truck,” but that he kidnaped him because Sanchez was involved in could not understand exactly what this person illegal drug-trafficking and owed the kidnapers wanted him to do. Mickens then got on the $100,000 on a drug debt. Sanchez also was line and asked Redic to bring $5,000 and the abducted, and, at the time of trial, his title to the Rodeo. whereabouts were unknown. Mickens then relayed to Redic instructions Mickens testified that men with guns he received from Juan, telling Redic to take grabbed him and taped his body and head so the money and title just over the Zaragoza that he could not see. They also “pok[ed]” Bridge onto the Mexican side, where he was him with guns while he was restrained with to meet Juan between 5:00 and 5:30 p.m. tape. Mickens did not testify that Zacarias Mickens described Juan as a “big, heavy-set, was present when he was taken hostage. He black guy.” Mickens then was taken back to did testify, however, that over an hour later, the house, where he watched the Olympics on ZacariasSSwho was referred to as “Juan” and television. During this time, Chuy departed, “Juanito,”SSwas present in the house where leaving only Juan and the two men with guns Mickens was being held and helped remove holding Mickens. the tape from Mickens. Meanwhile, Redic collected the title and Another man referred to as “Chuy” also $4,000 from Mickens’s father, who testified was present. Juan asked Mickens how much that he gave the money because Redic told him money he could give them. Mickens replied that “my son was being held by someone, and that he could give about $5,000. Juan then they demanded this money and title for his

release.” Redic then added $1,000 of his own At trial, Mickens and Redic again identified money and went across the Zaragoza Bridge, Zacarias, and Zacarias was convicted of hos- as instructed. tage taking. At sentencing, and over Zacarias’ objections, the court applied a six level upward Mickens testified that about 5:00 p.m., Juan adjustment pursuant to U.S.S.G. § 2A4.1- and one of the men with a gun left the house, (b)(1), because a ransom demand was made, presumably to meet Redic. Redic testified that and a two-level increase pursuant to U.S.S.G. after he had parked on the Mexican side of the § 2A4.1(b)(3), because a dangerous weapon bridge, a vehicle pulled up beside him; the was used. driver motioned him to come over. Redic got into the car in which sat only one man, whom II. Redic later identified as Zacarias. Redic was Zacarias argues error as a matter of law in told that his friend was all right, and he then the six-level increase for the ransom demand. handed over the money and title. He contends that an upward adjustment can be made under § 2A4.1(b)(1) only if a ransom de- Mickens testified that the man with the gun mand is made on the government. who had gone with Juan returned to the house, and that the two men took him to the bridge, We conduct a de novo review of the where he was released. He saw Redic there application of the Sentencing Guidelines. See and walked over and got into Redic’s car, United States v. Rocha, 916 F.2d 219, 242 whereupon they crossed the border. (5th Cir. 1990). “The Sentencing Guidelines are subject to the rules of statutory During the investigation of the kidnaping, construction.” Id. at 243 (citation omitted). an informant told the FBI that Zacarias was “[T]his court follows the clear, unambiguous involved, and provided an FBI agent with language of the Guidelines if there is no Zacarias’s pager number. One of Mario San- discernible manifestation of contrary intent.” chez’s sisters, who had been negotiating for Id. his release, also provided the FBI with the same pager number, which was given to her by Section 2A4.1(b)(1) provides that “[i]f a the person with whom she had been ransom demand or a demand upon government negotiating, who identified himself as “Juan.” was made, increase by 6 levels.” Zacarias The pager number was listed in the name of argues that this means that if a ransom demand Mario Zacarias, Juan’s brother, and the or other demand was made on the address listed on the account was Juan’s government, an increase is applicable, but that parents’ house. the increase in no way applies to cases in which ransom demands are made on After collecting this information, the FBI individuals. He arrives at this conclusion by compiled photo arrays of five individuals with citing the “doctrine of the last antecedent” and similar builds and facial features to Zacarias. then giving this doctrine its opposite meaning. After being shown the photos separately, Mickens and Redic identified Zacarias as the Zacarias quotes United States v. Campbell, kidnaper known as “Juan.” 49 F.3d 1079, 1086 (5th Cir. 1995), which states that “qualifying words, phrases, and

clauses are to be applied to the words or the use of guns by others cannot be attributed phrases immediately preceding, and are not to to him for sentencing purposes. Unfortunately be construed as extending to . . . others more for Zacarias, this interpretation ignores the remote.” Just so, and because of the doctrine plain language of the guidelines. of the last antecedent, Zacarias’s interpretation is completely wrong. Section 1B1.3(a)(1)(A) allows the court to consider “all acts and omissions committed, The words “upon government” qualify only aided, abetted, counseled, commanded, “demand” but not the disjunctive “ransom de- induced, procured, or willfully caused by the mand” that appears before the “or.” Cf. Reiter defendant” in determining relevant conduct for v. Sonotone Corp., 442 U.S. 330, 339 (1979) sentencing guideline purposes. Further, (stating that terms connected by the disjunctive § 1B1.3(a)(1)(B) states that “all reasonably are to be given separate meanings). The court foreseeable acts and omissions of others in correctly applied the six-level increase for a furtherance of the jointly undertaken criminal ransom demand. activity” constitute relevant conduct to be con- sidered by the court . Finally, the defendant III. can be held accountable for the conduct of Zacarias contends that the court erred in others whether or not the defendant is charged making a two-level increase pursuant to with a conspiracy. See § 1B1.3(a)(1)(B), § 2A4.1(b)(3) for the use of a dangerous comment. (n.2). weapon. He argues that he did not possess or use a weapon during the commission of the Use of a dangerous weapon was more than crime and that, because he was not indicted for reasonably foreseeable to Zacarias, who, in conspiracy, he cannot be held accountable for fact, had actual knowledge that dangerous the conduct of the men who had guns. weapons were being used as he directed the holding and ransoming of Mickens. Thus, at We review de novo any legal conclusions best Zacarias “aided” and “abetted” the use of regarding application of the guidelines. See guns in holding Mickens, and, more probably, United States v. Gonzalez, 996 F.2d 88, 91 he “counseled, commanded” and “induced” the (5th Cir. 1993). Section 2A4.1(b)(3) provides use of the firearms. See § 1B1.3(a)(1)(A); cf. that “[i]f a dangerous weapon was used, United States v. Aguilera-Zapata, 901 F.2d increase by 2 levels.” “Use” of a dangerous 1209, 1212-16 (5th Cir. 1990). weapon includes the discharge of a firearm or conduct that amounts to “more than IV. brandishing, displaying, or possessing a firearm Zacarias contends that the court deprived or other dangerous weapon.” § 2A4.1, com- him of his Sixth Amendment right to ment. (n.2); U.S.S.G. § 1B1.1, comment. confrontation and cross-examination when it (n.1(g)). refused to admit into evidence a tape recording of a conversation between the victim, The district court correctly concluded that Mickens, and Francisco Sanchez, the brother the use of guns to hold Mickens hostage was of Mario Sanchez, the other kidnaping victim. a “use” under the guidelines. Zacarias does Zacarias contends that the tape would have not disagree with this conclusion but avers that shown that Francisco Sanchez threatened

Mickens by saying that someone had to “pay of a tape recording of a telephone for what happened to his brother,” and that the conversation between Mickens and Francisco tape would have impeached Mickens’s Sanchez. Zacarias argued that Francisco San- testimony by showing that fear of Francisco chez stated on the tape that he was going to Sanchez gave Mickens a motive to testify that “get everybody” in retaliation for his brother’s Zacarias was a kidnaper. Zacarias contends kidnaping. Zacarias argued that Francisco that the relevant evidence on the tape would Sanchez was dangerous and terrifying, that his have discredited the other evidence against entire family was afraid of him, and that he him, which consisted only of “weak out of threatened Mickens. Zacarias argued that the court identifications and questionable in court tape constituted relevant evidence of Mick- identifications.” ens’s motive for testifying against Zacarias, i.e., to show that “somebody needs to go The government contends that the court down on this case.” properly excluded the recording, because the information on the tape was not relevant, was The court offered to admit a portion of the hearsay, and was only a collateral matter for recording that described Zacarias, identified as impeachment. The government contends, in Juanito on the tape, as a fat person, because at the alternative, that even if the exclusion of the trial, Zacarias was “not so fat.” The court evidence was error, the error was harmless, concluded that nothing else on the tape was because the evidence that identified Zacarias admissible “for any conceivable purpose.” The was strong and was corroborated by other court explained that evidence of Francisco evidence. Sanchez’s making threats was not admissible or relevant, because he was not involved in the A witness’s possible bias, prejudice, or mo- case. tivation for testifying is relevant evidence. See United States v. Alexius, 76 F.3d 642, 645 Zacarias’s attorney cross-examined Mick- (5th Cir. 1996). The exclusion of evidence rel- ens concerning his fear of Francisco Sanchez, evant to the bias or ulterior motive of a wit- and Mickens said that he was not afraid. ness may violate the Sixth Amendment. Unit- When he was asked whether everyone in the ed States v. Fortna, 796 F.2d 724, 734 (5th Sanchez family was afraid of Francisco San- Cir. 1986). Nevertheless, a court retains broad chez, Mickens testified: “I wouldn’t say ev- discretion “in restricting the scope of cross- erybody’s afraid of him. I will say he’s crazy. examination, including how bias may be But I wasn’t afraid of him or nothing like proved.” Id. (citations omitted). that.” Mickens reiterated that he did not have any reason to be afraid of Francisco Sanchez. We review a restriction on the scope of cross-examination only for abuse of discretion. At that point, Zacarias’s counsel referred to Alexius, 76 F.3d at 644. “[E]videntiary rulings the tape recording of the telephone constitute reversible error only when they conversation between Mickens and Francisco affect a defendant’s substantial rights.” Id. Sanchez. Mickens denied having a telephone (citation omitted). conversation with Francisco Sanchez. Later, during the defense’s presentation of its case, Zacarias sought the admission into evidence Mickens testified that he did not remember

having the telephone conversation with Mickens’s friend, Roderick Redic, who Francisco Sanchez. delivered the ransom and the truck title in exchange for Mickens’s release, also identified A portion of the tape was then played while Zacarias in a pretrial photographic line-up and the jury was present. After hearing a portion at trial. of the tape, Mickens identified his voice and Francisco Sanchez’s voice, and Mickens iden- Moreover, an FBI agent testified that a tified another person who was present during government informant had connected Zacarias the telephone conversation that had been re- to the kidnaping and gave him a pager number corded. that matched a pager number that the agent had been given by another source. The pager Zacarias’s counsel asked Mickens whether was registered to Zacarias’s parents’ house. Francisco Sanchez had threatened him and The informant provided corroboration that Za- “everyone else in the world” during the carias was involved in the kidnaping through recorded conversation. Mickens denied that telephone calls made by the informant to the Francisco Sanchez had threatened him. Za- pager number. carias’s attorney offered the tape as impeachment evidence. The court stated that Although Zacarias asserts that the out-of- “it would be impeachment as to a completely court and in-court identifications were weak collateral matter, so it’s not admissible.” The and questionable, the record does not support court, however, allowed Zacarias to include this assertion. The eyewitnesses did not hes- the tape as a record exhibit. On redirect, itate in their identifications of Zacarias, and Mickens admitted that “people are afraid” of nothing in the record provides reason to Francisco Sanchez but again denied that he question the reliability of the photo was afraid of him. identification. Finally, Zacarias’s counsel also took the opportunity to cross-examine Mick- A witness’s biases and motivation for tes- ens about his fear of Francisco Sanchez. tifying are “always relevant as discrediting the witness and affecting the weight of his Even if Mickens’s motive for identifying testimony.” Alexius, 76 F.3d at 645 (citation Zacarias as one of his kidnapers was fear of and internal quotations omitted). Assuming Francisco Sanchez, the fact remains that Redic arguendo that the district court erred by ruling separately identified Zacarias as the one to that the alleged impeachment portion of the whom he paid the ransom. Thus, for Zacari- tape recording was not admissible, the as’s theory of defense to be borne out, there exclusion of the evidence was harmless, also must have been a reason for Redic not because “it is clear beyond a reasonable doubt only to lie about Zacarias’s being the ransom- that the error did not contribute to the er, but there must also have been a reason for verdict.” Id. at 646 (citation omitted). Redic to pick out Zacarias’s photograph from the photo line-up. Zacarias provided no evi- Zacarias did not testify; his only defense dence casting doubt on Redic’s testimony, nor was erroneous identification. In a pre-trial could he dispute the government’s photographic line-up and at trial, Mickens corroborating evidence that a pager linked to identified Zacarias as one of the kidnapers. Zacarias was used as part of the ransom

negotiations surrounding the holding of Mario Sanchez. There was ample evidence upon which to convict, and, therefore, it is plain beyond a reasonable doubt that any fear Mickens had of Francisco Sanchez did not contribute to the verdict. The exclusion of the alleged impeachment evidence on the tape recording was harmless.

V. In his statement of the case, Zacarias makes a passing charge that the evidence against him was insufficient to support his conviction, but he does not mention this challenge elsewhere in his brief. We deem this issue waived, because it was not adequately briefed. See, e.g., United States v. Mullin, 178 F.3d 334, 340 n.1 (5th Cir. 1999).

AFFIRMED.