United States v. Sandra Ceballos

Case: 13-50786 Document: 00513080900 Page: 1 Date Filed: 06/16/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50786 United States Court of Appeals

Fifth Circuit

FILED

UNITED STATES OF AMERICA, June 16, 2015

Lyle W. Cayce

Plaintiff–Appellee Clerk

v.

SANDRA LISSETH CEBALLOS,

Defendant–Appellant

Appeal from the United States District Court

for the Western District of Texas

Before SMITH, PRADO, and OWEN, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Defendant–Appellant Sandra Lisseth Ceballos appeals her conviction for

transporting, attempting to transport, and engaging in a conspiracy to

transport an alien within the United States for private financial gain. She

alleges a violation of her Sixth Amendment right of confrontation, the

erroneous admission of evidence necessary to prove the financial-gain element

of the offenses charged, and cumulative error that deprived her of a fair trial.

We affirm.

I. BACKGROUND

On December 18, 2012, Customs and Border Protection (CBP) agents in

El Paso discovered Abel Viera Mendez (Viera), a Mexican national, attempting

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to enter the United States without authorization. 1 They detained Viera and,

upon questioning, determined that he had entered the country by rappelling

off of a bridge with the aid of a paid smuggler, “Chucky.”

On learning that Viera had also arranged for transport within the United

States, the agents set up a sting operation. With Viera’s consent, one of the

agents, Humberto Torres, posed as Viera and answered a call on Viera’s cell

phone from the suspected smuggler—a Spanish-speaking male—and requested

a ride. Agent Torres gave the smuggler a meeting location, and the smuggler

told Agent Torres that a gray, four-door Mitsubishi with tinted windows would

pick him up. Once at the designated site, Agent Torres continued to pose as

Viera while fellow agents Brendan McCarthy and Orlando Marrero–Rubio set

up surveillance. Agent Torres also surreptitiously initiated a phone call with

Agent McCarthy, enabling Agent McCarthy to hear Agent Torres’s activity. 2

Shortly after Agent Torres’s conversation with the smuggler, Ceballos

arrived at the location in a vehicle matching the smuggler’s description.

Ceballos, who was speaking on a cell phone, asked the person on the line, “What

was his name?” She then asked Agent Torres whether he was “Abel.” After

Agent Torres replied in the affirmative and confirmed that Ceballos was aware

of “Abel’s” immigration status, Ceballos invited Agent Torres into the vehicle.

At this time, Agent Torres dropped his cell phone, a coded signal to Agents

McCarthy and Marrero–Rubio to apprehend Ceballos. The agents separately

placed both Ceballos and Agent Torres, still posing as Viera, under arrest.

The agents issued Ceballos her Miranda warnings, and before invoking

her right to counsel, Ceballos indicated that she had been at the location either

1 We recount the facts as presented at Ceballos’s trial, viewing them in the light most

favorable to the verdict. United States v. Ambriz, 727 F.3d 378, 380 n.1 (5th Cir. 2013).

2 Agent McCarthy also maintained visual contact with Agent Torres for much of the

operation, and he confirmed key aspects of Agent Torres’s testimony at trial.

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to pick up her ex-husband José or to collect child support from him. 3 The agents

then placed Ceballos in a CBP vehicle with Agent Torres, who continued to

present himself as Viera. Agent Torres repeatedly asked Ceballos why she had

called “the migra.” Ceballos replied, “Who are you? I don’t know you. Don’t talk

to me.” Agent McCarthy testified that Agent Torres was not aware that Ceballos

had been Mirandized before she joined him in the CBP vehicle, and Agent Torres

confirmed that he was unable to hear Ceballos’s conversation with the other

agents; all agree that once Ceballos requested an attorney, no agent other than

Agent Torres—still posing as Viera—questioned Ceballos.

Following Ceballos’s arrest, the agents inventoried the contents of the

vehicle and discovered two cell phones as well as a notebook in Ceballos’s purse

that contained dates, the names “Enrique” and “José,” references to “girl[s],”

“guy[s],” and a “couple,” dollar amounts, and notations in Spanish and English

signifying “pick up,” “deliver,” and “food.” There were no entries in the notebook

dated December 18, 2012, but there was one entry dated December 16, 2012.

Agent Felix Amaya, who assisted his colleagues in processing Ceballos’s arrest

and handling her possessions, photocopied the pages of the notebook on the

suspicion that it served as a ledger of Ceballos’s smuggling activity. Another

agent, Elias Contreras, searched Ceballos’s cell-phone call history and noticed

several calls to contacts named “Enrique” and “José ex” around the time of

Ceballos’s apprehension. In addition, Agent McCarthy interviewed Viera and

obtained a sworn written statement describing the events of December 18 and

detailing the arrangements he had made with “Chucky.”

3 Ceballos testified at trial that she had traveled to the location to pick up José, and

because it was dark, she mistook Agent Torres for José. By Ceballos’s account, Agent Torres

approached her vehicle and initiated contact with her by saying, “Abel.” This confused

Ceballos and prompted her to repeat the name; at this point, she testified, Agent Torres

dropped his phone and opened her car door, and the remaining CBP agents approached to

arrest her.

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Ceballos was indicted for (1) conspiracy to transport aliens within the

United States for private financial gain and (2) transporting and attempting

to transport an alien within the United States for private financial gain. 4 A

jury found Ceballos guilty of both counts, 5 and Ceballos timely appealed.

II. DISCUSSION

We have jurisdiction to review the district court’s final judgment of

conviction under 28 U.S.C. § 1291.

Ceballos raises three challenges to the evidence presented at her trial.

First, she contends that the admission of Viera’s testimony—both through

Viera’s sworn, written statement and through the testimony of CBP agents—

violated her Sixth Amendment right of confrontation. Second, she avers that

the notebook in her purse, which the Government alleged was a smuggling

ledger, was inadequately authenticated and constituted inadmissible evidence

of prior bad acts under Federal Rule of Evidence 404(b). Third, she claims

cumulative error in inappropriate Government witness testimony, alleged pro-

prosecution statements by the trial judge, and improper closing argument by

the Government. We discuss each asserted error in turn.

A. The Confrontation Claim

Ceballos first argues that the district court violated her Sixth

Amendment rights by admitting Viera’s testimony into evidence without first

establishing that he was unavailable and that Ceballos had a prior adequate

opportunity to cross-examine him. As Ceballos failed to object to the testimony

at trial, our review would ordinarily be for plain error. United States v.

Vasquez, 766 F.3d 373, 378 (5th Cir. 2014), cert. denied, 135 S. Ct. 1453 (2015).

4 The Government did not criminally prosecute Viera and did not attempt to identify

Chucky, Enrique, or José, or to determine whether they had a role in the alleged smuggling

conspiracy.

5 Ceballos unsuccessfully moved for a directed verdict and for a judgment of acquittal

or, in the alternative, a new trial.

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However, because we conclude that Ceballos waived her right of confrontation

through her counsel’s unchallenged stipulation to the admission of the

testimony, her claim is “entirely unreviewable,” United States v. Musquiz, 45

F.3d 927, 931 (5th Cir. 1995); see United States v. Olano, 507 U.S. 725, 733

(1993) (“Waiver is different from forfeiture. Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the intentional relinquishment

or abandonment of a known right.” (internal quotation marks omitted)).

The Confrontation Clause of the Sixth Amendment guarantees the right

of a criminal defendant to confront the witnesses against her. Delaware v. Van

Arsdall, 475 U.S. 673, 678 (1986). Specifically, the Clause bars the introduction

of testimonial evidence against a criminal defendant unless the proponent

shows both that the declarant is unavailable and that the defendant had “a

prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S.

36, 68 (2004). Nevertheless, counsel in a criminal case may waive his client’s

Sixth Amendment right of confrontation by stipulating to the admission of

evidence, “so long as the defendant does not dissent from his attorney’s

decision, and so long as it can be said that the attorney’s decision was a

legitimate trial tactic or part of a prudent trial strategy.” United States v.

Stephens, 609 F.2d 230, 232–33 (5th Cir. 1980). The Government has the

burden of proving that the defendant effected a valid waiver, and we “should

indulge every reasonable presumption against waiver of fundamental

constitutional rights.” United States v. Johnson, 954 F.2d 1015, 1020 (5th Cir.

1992) (internal quotation marks omitted).

Prior to trial, the Government moved to have Viera, “a material witness,”

declared unavailable so that it would be able to introduce Viera’s videotaped

deposition into evidence at trial. At a pretrial conference, however, the

Government withdrew its motion and also expressed its intention not to call

Viera as a live witness. The Government explained that Viera’s testimony “is

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not essential to our case” but observed that defense counsel Fernando Chacon

had intimated that he may make “an effort . . . to offer some or all of the

videotaped deposition.” Defense counsel made no remarks at this time.

The court then asked whether the parties had agreed on exhibits to be

admitted. The Government stated that it had shared its eleven proposed

exhibits with defense counsel and the court, and that “the defense doesn’t have

a problem with most of them, although they do oppose the ledger, which is

Government’s Exhibit Number 6.” After a discussion of Ceballos’s motion in

limine to exclude the ledger, the court asked: “[A]s to everything else . . . you

are in agreement as to the admissibility of the government’s exhibits under

those exhibit numbers?” Defense counsel responded affirmatively. The court

then admitted all exhibits except Government’s Exhibit 6 (the ledger) and

Defendant’s Exhibit 1 (Ceballos’s cell phone records).

In response to a question from the court regarding “any major evidentiary

issues” outstanding before trial, the Government advised the court that

although defense counsel had raised no objection to several of the exhibits,

Government’s Exhibits 4, 5, 7, and 8 were “all documents from the . . . alien file”

of Viera, “the material witness in this case.” Exhibit 8 was Viera’s sworn

statement. Defense counsel explained that he had no objection to the

admissibility of those exhibits, but he conditioned his agreement to admit the

exhibits on the opportunity to cross-examine their proponents. The court

expressed its understanding of defense counsel’s position but made no indication

that its ruling admitting the evidence had changed. Neither party identified any

further issues for discussion.

During trial, the Government questioned Agent McCarthy regarding the

subject matter of what Viera had told him following his apprehension.

Additionally, at the Government’s request, Agent McCarthy recited Viera’s

written statement. Although Ceballos did not object to either form of

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testimony, she did cross-examine each of the CBP agents who served as a

proponent of the stipulated evidence.

We hold that Ceballos effectively waived her right of confrontation. The

record does not reflect, and Ceballos does not allege, 6 that she disagreed with

her counsel’s decision to stipulate to the admission of Viera’s testimony. See

Stephens, 609 F.2d at 232–33. Further, the stipulation was at least arguably

“a legitimate trial tactic or part of a prudent trial strategy,” id. As the

Government points out, if Ceballos had opposed the admission of Viera’s

statements, the Government could have revived its motion to introduce Viera’s

videotaped deposition—a form of evidence that Ceballos’s counsel may have

viewed as uniquely harmful. Alternatively, Ceballos’s counsel may have had

strategic reasons to concede the admission of this particular evidence. Ceballos’s

counsel argued in closing that the Government had failed to carry its burden

of proof, emphasizing that it “could have brought” witnesses like Viera but

neglected to do so. And in view of Ceballos’s defense that she was attempting

to collect child support and was set up by her ex-husband in order to avoid his

obligations, Ceballos’s counsel may have viewed Viera’s testimony—which did

not implicate Ceballos or describe her vehicle—as exculpatory. 7

We note that this case is distinct from Stephens in one important respect:

the record before us does not reflect whether Ceballos personally assented to the

stipulation. In Stephens, our foundational case on the waiver of the right of

confrontation, the trial court questioned the defendants in detail about their

6 Indeed, Ceballos has not filed a reply brief and so has not offered any rebuttal of the

Government’s waiver argument.

7 Although Ceballos’s counsel made no stipulation to the admission of testimony

describing Viera’s statements, this does not change the outcome of our analysis. As defense

counsel’s stipulation was unqualified except for the opportunity to cross-examine the

proponent of the statement, and the testimony recounting Viera’s statements to the CBP

agents was entirely cumulative of Viera’s written statement, we see no principled reason to

exclude this testimony from the scope of the waiver.

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understanding of the arrangement and its possible implications for their defense

before it accepted the stipulation. 609 F.2d at 233. We placed notable emphasis

on this fact: “Our reading of the record convinces us that both [defendants], with

full knowledge of the implications, consented to the stipulation. There is no

evidence that they expressed any reservations to their attorney prior to their

appearance before the district judge.” Id.; see also United States v. Adams, 439

F. App’x 340, 342 (5th Cir. 2011) (per curiam) (holding that defendant waived

his confrontation right when he “was made aware of the issues surrounding the

witness’s availability” and “participated in his attorney’s decision to admit [the

witness’s] written statement in lieu of her in-court testimony”).

Here, by contrast, the district court never confirmed that Ceballos had

assented to the stipulation—in fact, it is unclear whether Ceballos was even

present for the pretrial conference. Further, as defense counsel made no

contemporaneous confrontation objection at trial, the judge had no occasion to

present Ceballos with the stipulation.

Nevertheless, we are not convinced that the facts of this case compel a

different result. Indeed, this Court has found a valid waiver of the right of

confrontation without evidence that the defendant himself expressed

agreement with the stipulation. See United States v. Reveles, 190 F.3d 678, 683

(5th Cir. 1999), abrogated on other grounds by United States v. Vargas–

Ocampo, 747 F.3d 299 (5th Cir. 2014) (en banc). In Reveles, the government

announced during a pretrial proceeding that it intended to introduce an

incriminating written statement by a co-defendant. Id. The government offered

to introduce a redacted version of the statement, but defense counsel replied

that this was “unnecessary” and affirmed that “he would not make any Bruton

objection.” Id. When the government attempted to clarify the agreement for

the record—“I want to make it clear in case [the declarant] changes his mind

and doesn’t testify,” government counsel said—defense counsel interjected,

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“It’s not that damaging.” Id. The judge then admitted the statement. Id. On

appeal, the defendant “argue[d] that the introduction of the statement harmed

his case.” Id. at 683 n.6.

We rejected this contention and held that the defendant had effectively

waived his right of confrontation, precluding even plain-error review of the

evidentiary ruling. Id. at 683 & n.6. In addition to counsel’s concession of

waiver at oral argument, we noted that the defendant “did not object to his

attorney’s decision” at trial, “he d[id] not provide [this Court] with any

argument as to why the waiver could not have been a ‘legitimate trial tactic or

part of a prudent trial strategy,’” and he did not “call[] [his attorney’s]

intentions into question” on appeal. Id. at 683 n.6. We concluded: “When a

defendant has waived a right, the district court cannot be said to have erred

by failing to override the intentions of the defendant’s counsel by asserting the

right sua sponte.” Id. at 683 (emphasis added) (citing Olano, 507 U.S. at 733).

Our reasoning in Reveles suggests that a permissible waiver of the right

of confrontation is not contingent on evidence that the defendant affirmatively

agreed to counsel’s stipulation; she just must not dissent from that decision.

The opinions of our fellow circuits are in accord. See United States v. Plitman,

194 F.3d 59, 64 (2d Cir. 1999) (rejecting the argument that “a defendant in every

instance personally must waive the right to confront the witnesses against him”

and holding, together with the majority of circuits, that “defense counsel may

waive a defendant’s Sixth Amendment right to confrontation where the decision

is one of trial tactics or strategy that might be considered sound”).

Ceballos conceded at oral argument that Stephens applies to her case

and binds us under the Fifth Circuit’s rule of orderliness, but she urged this

Court to reconsider Stephens in light of the Supreme Court’s intervening

opinion in Crawford v. Washington, 541 U.S. 36. See Jacobs v. Nat’l Drug

Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth

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Circuit rule of orderliness that one panel of our court may not overturn another

panel’s decision, absent an intervening change in the law, such as by a

statutory amendment, or the Supreme Court, or our en banc court.”). In

Ceballos’s view, Crawford elevated the admission of testimonial hearsay from

an evidentiary issue to one of constitutional significance, rendering the right

of confrontation personal in nature and not susceptible of waiver by counsel.

Ceballos is correct that Crawford set forth the constitutional requisites of

confrontation and rejected the notion that “the Framers meant to leave the Sixth

Amendment’s protection to the vagaries of the rules of evidence.” 541 U.S. at 61.

But her position rests on two flawed premises: first, that Stephens enunciated

an evidentiary holding rather than a constitutional one; and second, that

Crawford effected a change in the law governing waiver of the right of

confrontation. In fact, Stephens expressly held that “counsel in a criminal case

may waive his client’s Sixth Amendment right of confrontation by stipulating to

the admission of evidence.” 609 F.2d at 232 (emphasis added). Notably, in

reaching this conclusion, we cited the Supreme Court’s opinions in Brookhart v.

Janis, 384 U.S. 1 (1966), and Diaz v. United States, 223 U.S. 442 (1912).

Stephens, 609 F.2d at 232. The Court has never overruled either of these cases,

and we see no indication that Crawford achieved this object sub silentio. 8

Further, we note that two of our fellow circuits have openly held that Crawford

did not change the contours of confrontation-waiver law, 9 and several others

8 Indeed, the Court in Crawford neither cited a single case on waiver nor used the

term outside of a single footnote discussing a portion of the state-court opinion on which the

Court expressed no view, see 541 U.S. at 42 n.1.

9 See United States v. Holmes, 620 F.3d 836, 842–43 (8th Cir. 2010) (“Crawford did

not change the rule that a defendant can waive his right to confront witnesses by opening the

door to the admission of evidence otherwise barred by the Confrontation Clause” (internal

quotation marks omitted)); United States v. Lopez–Medina, 596 F.3d 716, 733 (10th Cir. 2010)

(“[A] defendant can open the door to the admission of evidence otherwise barred by the

Confrontation Clause. Other jurisdictions have held, subsequent to Crawford, there is no

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have continued to apply the Stephens rule after Crawford. 10 Accordingly, we

conclude that Stephens remains binding in this circuit, and we decline Ceballos’s

invitation to revisit that case. See Jacobs, 548 F.3d at 378.

In sum, as Ceballos waived her confrontation objection to the admission

of Viera’s testimony, she cannot now argue that this amounted to error. See

Musquiz, 45 F.3d at 931.

B. The Admission of the Notebook

Ceballos next contends that the district court reversibly erred in

admitting the notebook found in her purse, which the Government presented

to the jury as a smuggling ledger. Ceballos maintains that the notebook was

not properly authenticated under Federal Rule of Evidence 901, and that it

contained evidence of bad acts extrinsic to the charged offenses, in violation of

Federal Rule of Evidence 404(b).

Although Ceballos filed a pretrial motion in limine to exclude the notebook

on relevance, undue prejudice, “other acts,” and hearsay grounds, the Court

withheld a ruling on admissibility until trial, and Ceballos objected at trial only

to the item’s authenticity. Thus, we review the authentication issue for abuse of

discretion, subject to a harmless-error analysis, see United States v. El-Mezain,

664 F.3d 467, 494 (5th Cir. 2011), but we review the Rule 404(b) issue for plain

error, see United States v. Graves, 5 F.3d 1546, 1551 (5th Cir. 1993). To establish

plain error, Ceballos has the burden of proving (1) an error (2) that was “clear

or obvious, rather than subject to reasonable dispute” and (3) that affected her

“substantial rights.” Puckett v. United States, 556 U.S. 129, 135 (2009). If she

makes these showings, we may use our discretion to remedy the error, but “only

Confrontation Clause violation when the defendant opens the door to the admission of

hearsay testimony.”).

10 See United States v. Williams, 403 F. App’x 707, 708–09 (3d Cir. 2010); Janosky v.

St. Amand, 594 F.3d 39, 48 (1st Cir. 2010); United States v. Gonzales, 342 F. App’x 446, 447–

48 (11th Cir. 2009).

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if [4] the error seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted). “Meeting all four

prongs is difficult, as it should be.” Id. (internal quotation marks omitted).

1. Authentication

Authentication of a document is a condition precedent to its admission.

See Fed. R. Evid. 901(a). “Rule 901(a) ‘merely requires some evidence which is

sufficient to support a finding that the evidence in question is what its

proponent claims it to be.’” United States v. Isiwele, 635 F.3d 196, 200 (5th Cir.

2011) (quoting United States v. Watkins, 591 F.3d 780, 787 (5th Cir. 2009)).

Testimony by a witness with knowledge of the item, the item’s own distinctive

characteristics, and the circumstances of the item’s discovery may each suffice

to authenticate evidence. See United States v. Barlow, 568 F.3d 215, 220 (5th

Cir. 2009); In re McLain, 516 F.3d 301, 308 (5th Cir. 2008).

Significantly, “[t]his Court does not require conclusive proof of

authenticity before allowing the admission of disputed evidence.” United States

v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989). Rather, once the proponent

has made the requisite preliminary showing of authenticity, the evidence should

be admitted, as “[t]he ultimate responsibility for determining whether evidence

is what its proponent says it is rests with the jury.” Barlow, 568 F.3d at 220.

Assuming this threshold is met, alleged flaws in authentication “go to the weight

of the evidence instead of its admissibility.” Isiwele, 635 F.3d at 200 (internal

quotation marks omitted). Correspondingly, we have recognized that “[t]he

standard for authentication is not a burdensome one,” United States v. Jackson,

636 F.3d 687, 693 (5th Cir. 2011), and we have characterized the proponent’s

burden as “low,” United States v. Lundy, 676 F.3d 444, 453–54 (5th Cir. 2012).

While we have yet to confront circumstances identical to those at bar,

this Court has upheld a finding of authenticity based on evidence that a writing

with contents broadly corroborative of the offense charged was discovered in

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the defendant’s exclusive possession. In United States v. Wake, the defendant,

on trial for possession of narcotics with intent to distribute, challenged the

authentication of items seized from his wallet, his office, and his car. 948 F.2d

1422, 1425, 1434 (5th Cir. 1991). The items included “a sheet with names, code

numbers, and telephone numbers”; “a series of tally sheets . . . contain[ing]

code numbers, numbers representing quantities of drugs, and amounts of

money”; and “notebook pages . . . contain[ing] such statements as ‘Have guns

out of house’, ‘throw out calendar sheets’, ‘What if Mitch or Doug turns me in’,

and ‘can I be indicted’.” Id. at 1434. The Government authenticated the

writings through the testimony of a DEA agent who participated in the

criminal investigation. Id. The agent “testified as to the circumstances under

which each writing was seized from the property or physical possession” of the

defendant. Id. We found “no error, much less the requisite abuse of discretion,”

in the district court’s admission of the exhibits. Id. at 1435. To this end, we

noted that authentication may be achieved through circumstantial evidence

alone, that the contents of documents may be used to establish the identity of

the declarant, and that handwriting analysis is not a prerequisite to

authentication. Id. at 1434–35.

We, and our colleagues in other circuits, have also found evidence of

ledgers maintained in furtherance of conspiracies to be adequately

authenticated by their distinctive contents and the circumstances of their

discovery—at least when the proponent offers the testimony of a participant in

the conspiracy or a witness familiar with its operations. See United States v.

Arce, 997 F.2d 1123, 1127–28 (5th Cir. 1993) (holding that records were

properly authenticated as drug ledgers maintained by a co-conspirator based

on evidence that the records were recovered from the co-conspirator’s home,

testimony of a witness as to the handwriting on the ledgers and the similarity

of the ledgers to others maintained by the co-conspirator, and evidence that

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notations in the ledgers corresponded to known transactions); United States v.

De Gudino, 722 F.2d 1351, 1355–56 (7th Cir. 1983) (holding that records were

properly authenticated as the ledgers of a human-smuggling ring based on

evidence that the records were seized from its “headquarters” and on “testimony

outlining the smuggling techniques of the operation,” which, together with the

contents of the records, indicated authorship by a participant). 11

Here, the Government sought to introduce the notebook as a ledger

recording Ceballos’s smuggling activities. In the hearing on Ceballos’s motion

in limine, Government counsel made a proffer of the foundational testimony

he expected to elicit. Noting that “the Border Patrol officers that are involved

in this case have wide experience with alien smuggling organizations,” counsel

declared that he “plan[ned] on eliciting some testimony that this looks like to

them [it] could . . . possibly be a ledger, a record of alien smuggling activities.”

After recounting the facts of the notebook’s discovery, counsel described some

of the contents of the notebook and tied them to the Government’s theory of

the case. Counsel cited the notation “Enrique owes me $25” and observed that

Ceballos’s cell phone records reflected that she was engaged in a call with a

contact named Enrique at the time Agent Torres approached Ceballos’s car and

presented himself as Viera. Counsel also pointed to the reference to “José” and

remarked that Ceballos’s phone records revealed calls with a contact named

11 Ceballos directs our attention to a more recent case, United States v. Jackson, 636

F.3d 687 (5th Cir. 2011), in which this Court distinguished Arce and found drug ledgers

improperly authenticated. However, Jackson addressed whether the ledgers “were properly

authenticated as business records” exempt from the rule against hearsay under Federal Rule

of Evidence 803(6). Id. at 693 & n.3 (emphasis added); see also United States v. Young, 753

F.3d 757, 774 (8th Cir. 2014) (holding that Jackson had no application to an authenticity

challenge under Rule 901 because, inter alia, “the proponent in Jackson attempted to

introduce the ledger under the business-records exception to the hearsay rule, which requires

establishment of a different foundation before admission”), cert. denied, 135 S. Ct. 986 (2015).

Whether the notebook in Ceballos’s possession contained inadmissible hearsay is not

at issue on appeal: Ceballos has abandoned this claim of error through inadequate briefing.

See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).

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“José ex” on the day of her arrest. In addition, counsel indicated that he saw

the authorship of the notations as immaterial:

We think [Ceballos] did write it, but let’s say for argument[’s] sake

that we can’t prove that she specifically wrote it. Nevertheless,

having a record or a ledger of alien smuggling activities is highly

probative. In this case, it was in her purse, an item that is highly

personal. It’s in close proximity in space and time to her. It’s close

in space and time to the crime that was committed.

Notably, the record reflects that the district court was able to examine a copy

of the notebook during the hearing.

At trial, the Government offered as foundation the testimony of Agent

Amaya, who handled Ceballos’s possessions following her arrest. Eliminating

the testimony to which Ceballos timely objected, the following relevant

evidence was before the district court at the time it ruled to admit the notebook.

Agent Amaya discovered a notepad in Ceballos’s purse. The purse also

contained identifying documents, including pay stubs bearing Ceballos’s name.

The notebook “appeared to be a ledger.” Agent Amaya was looking for items

with “evidentiary value,” including “notes that can be in names, telephone

numbers, any kind of evidence . . . that can prove that . . . maybe she was a

pick-up driver and she’s involved in the smuggling scheme.” Names and dollar

amounts would be particularly important to this task. Agent Amaya referred

Ceballos’s notebook to a field intelligence agent, and made copies of the

notebook for evidence, because he thought it “was noteworthy.” There was no

indication that anyone other than Ceballos used the purse, and the purse

contained items that one would expect to find in a purse.

Although the issue is close, we cannot say that the district court abused

its discretion in finding the notebook properly authenticated. The Government

did not need to adduce “conclusive proof of authenticity,” Jimenez Lopez, 873

F.2d at 772; it needed only “evidence sufficient to support a finding that the

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item [was] what [it] claim[ed],” Fed. R. Evid. 901(a)—a ledger recording

smuggling activity in which Ceballos was involved. Here, as in Wake and Arce,

the evidence was found in the defendant’s exclusive possession: the notebook

was recovered from Ceballos’s purse, which was inside her car at the time of

her arrest. In addition, the contents of the notebook, which the court was able

to examine at the motion in limine hearing, provide some corroboration of the

alleged criminal activity. The notebook includes references to money owed to

individuals named “José” and “Enrique,” both the names of contacts in

Ceballos’s phone and both the subjects of calls with Ceballos around the time

of her arrest. It lists “guy” and “girl” next to individual dollar amounts and

days of the week, and it contains notations such as “pick up,” “deliver,” “food,”

and “bring her,” also alongside dollar amounts.

While these notations are not as distinctive—or as self-evidently

inculpatory—as those in Wake, and the Government did not offer testimony

from the author of the notebook or from any co-conspirator, as in Arce and De

Gudino, the contents of the notebook are generally consistent with a ledger

recording smuggling activity. Indeed, despite omitting any explicit reference to

the substance of the writings, Agent Amaya’s foundational testimony supports

this characterization. That the Government neglected to present handwriting

analysis is not dispositive; not only has this Court disclaimed the notion that

such evidence is a prerequisite to authenticating a writing, Wake, 948 F.2d at

1435, but as the Government expressed at the motion-in-limine hearing,

Ceballos’s possession of the notebook, and its potential corroboration of

smuggling activity, render the authorship of the writing less important than

Ceballos maintains. Further, we are mindful of the principle that once the

proponent has made a preliminary showing of authenticity, “[t]he ultimate

responsibility for determining whether evidence is what its proponent says it

is rests with the jury.” Barlow, 568 F.3d at 220. After the notebook was

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admitted, Ceballos was able to present competing evidence that the notebook

was in fact a personal ledger documenting innocuous matters—bills,

reminders, and notes from conversations—and it was the province of the jury

to credit one account over the other.

In view of the deferential abuse-of-discretion standard and the “low”

burden of authentication, Lundy, 676 F.3d at 453, we see no reversible error in

the district court’s finding of authenticity.

2. Rule 404(b) Extrinsic-Acts Evidence

Evidence pertaining to a defendant’s uncharged crimes, wrongs, or acts

is considered intrinsic to the charged offense and is generally admissible if “it

and evidence of the crime charged are inextricably intertwined, or both acts

are part of a single criminal episode, or [the uncharged act] was a necessary

preliminary to the crime charged.” United States v. Sumlin, 489 F.3d 683, 689

(5th Cir. 2007). Such evidence “is admissible to complete the story of the crime

by proving the immediate context of events in time and place . . . and to

evaluate all of the circumstances under which the defendant acted.” United

States v. Rice, 607 F.3d 133, 141 (5th Cir. 2010) (citations and internal

quotation marks omitted). In the context of a conspiracy, evidence is intrinsic

to the underlying offense “if it is relevant to establish how the conspiracy came

about, how it was structured, and how the [defendant] became a member.”

United States v. Watkins, 591 F.3d 780, 784 (5th Cir. 2009). And, plainly,

“[a]cts committed in furtherance of the charged conspiracy are themselves part

of the act charged” and therefore qualify as intrinsic evidence. United States v.

Garcia Abrego, 141 F.3d 142, 175 (5th Cir. 1998).

By contrast, when evidence of a defendant’s uncharged crimes, wrongs,

or other acts is extrinsic to the offense, the admission of that evidence is limited

under Rule 404(b). See Sumlin, 489 F.3d at 689. Although inadmissible to

prove the defendant’s character, extrinsic evidence “may be admissible for

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another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R.

Evid. 404(b).

Regardless of whether the evidence qualifies as intrinsic or extrinsic,

Ceballos has not shown plain error in the admission of the notebook. First,

there is a strong basis to conclude that the contested evidence was intrinsic to

the charged conspiracy offense. Ceballos was tried for, and convicted of,

conspiracy to transport illegal aliens for private financial gain “on or about

December 18, 2012.” As explained above, the notepad contains writing broadly

corroborative of the Government’s account of the offense and consistent with a

smuggling operation. These notations, which include references to “José” and

“Enrique,” an accounting of fees and expenses, and obligations to “pick up” and

“deliver” subjects, appear “relevant to establish . . . how the conspiracy was

structured,” Watkins, 591 F.3d at 784, and may even evince “[a]cts committed

in furtherance of the charged conspiracy,” Garcia Abrego, 141 F.3d at 175.

Further, at least one page bears a connection to the date listed in the

indictment (Tuesday, December 18, 2012): it includes the notations “12-16-12,”

“M-T-W,” and “entre couple Tuesday.”

Second, even if the notations refer to bad acts other than those charged,

Ceballos cannot show their admission was error that is “clear or obvious, rather

than subject to reasonable dispute,” Puckett, 556 U.S. at 135. The acts

described in the notebook at least arguably serve a permissible evidentiary

purpose under Rule 404(b)—proving intent, preparation, plan, or knowledge,

relating to both the conspiracy and the attempt to transport illegal aliens for

private financial gain. As a result, Ceballos has not discharged her heavy

burden to show plain error, and we hold that the district court did not err in

admitting the notebook.

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C. Cumulative Error

In her final point, Ceballos asserts that the above evidentiary errors,

coupled with “three blatant instances of comment upon Ceballos’s invocation

of her rights” and “improper personal attacks against Ceballos by the

prosecutor during closing argument,” deprived her of a fair trial.

“Cumulative error justifies reversal only when errors so fatally infect[ed]

the trial that they violated the trial’s fundamental fairness.” United States v.

Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (en banc) (internal quotation marks

omitted). “We have repeatedly emphasized that the cumulative error doctrine

necessitates reversal only in rare instances and have previously stated en banc

that ‘the possibility of cumulative error is often acknowledged but practically

never found persuasive.’” Id. (footnote omitted) (quoting Derden v. McNeel, 978

F.2d 1453, 1456 (5th Cir. 1992) (en banc)). A cumulative-error claim requires

this Court to “evaluate the number and gravity of the errors in the context of

the case as a whole.” United States v. Valencia, 600 F.3d 389, 429 (5th Cir.

2010). And, of course, “non-errors have no weight in a cumulative error

analysis.” Delgado, 672 F.3d at 344.

1. Doyle Errors

Ceballos argues that, on three occasions, Government witnesses

improperly testified that she invoked her rights to counsel and to remain silent.

In particular, she challenges the comments below as violations of Doyle v. Ohio,

426 U.S. 610 (1976). As Ceballos failed to object in all instances, our review is

again for plain error. See United States v. Andaverde–Tinoco, 741 F.3d 509, 518

(5th Cir. 2013), cert. denied, 134 S. Ct. 1912 (2014).

a. Direct Examination of Agent McCarthy

During Agent McCarthy’s direct testimony, Government counsel asked

whether Ceballos told the agent anything during or after her arrest. Agent

McCarthy explained that once Ceballos was out of her vehicle, he recited her

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Miranda rights in Spanish and asked whether she understood her rights and

whether she was willing to speak with or without an attorney present.

According to Agent McCarthy, after he repeated the question, another agent

approached and asked Ceballos whether or not she wanted an attorney. Agent

McCarthy testified that Ceballos “answered that, yes, she did want an

attorney, then all incriminating questions were stopped.”

b. Cross-Examination of Agent McCarthy

Defense counsel also questioned Agent McCarthy regarding his initial

approach and questioning of Ceballos. Specifically, counsel asked Agent

McCarthy whether he asked “[Ceballos] if she wanted to make any

statements.” Agent McCarthy responded:

I asked her what she was doing there. She said she was there to

collect child support. . . . That’s when I went ahead and Mirandized

her. And the Defendant at first was very evasive in answering the

question whether she understood her rights. . . . [A]s I testified

earlier, she finally said she understood her rights and she was . . .

not willing to make any statements without her attorney present.

At this point, Agent McCarthy placed Ceballos in the CBP vehicle.

c. Cross-Examination of Agent Contreras

Defense counsel questioned Agent Contreras regarding the procedure for

determining what information is included in a CBP report, prompting the

following exchange:

Q. And when you’re putting your report together and you’re talking

about an initial arrest, do you get to ask your agents, tell me what

statements were made by the Defendant at the arrest site?

A. When I spoke to the agents, I asked them what happened. They

gave me everything that occurred, but I don’t recall getting that

information until later when we spoke with the AUSA. Everything

that I was told by the agents when I spoke to them, the last I

remember is that she invoked her right to counsel, of what they

said and from what I saw in the report.

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d. Analysis

A defendant’s rights are violated when the prosecutor comments on the

fact that a defendant has chosen to remain silent following her arrest and

receipt of the Miranda warnings. See Doyle, 426 U.S. at 617–18. “A prosecutor’s

or witness’s remarks constitute comment on a defendant’s silence if the

manifest intent was to comment on the defendant’s silence, or if the character

of the remark was such that the jury would naturally and necessarily so

construe the remark.” United States v. Carter, 953 F.2d 1449, 1464 (5th Cir.

1992). “Both the intent of the prosecutor and the character of the remarks are

determined by reviewing the context in which they occur, and the burden of

proving such intent is on the defendant.” United States v. Laury, 985 F.2d 1293,

1303 (5th Cir. 1993) (quoting United States v. Shaw, 701 F.2d 367, 381 (5th

Cir. 1983) (citations omitted)).

Ceballos has not shown any Doyle error that was “clear or obvious,”

Puckett, 556 U.S. at 135. In his opening remarks, Ceballos’s counsel mentioned

multiple times that Ceballos invoked her rights to silence and to counsel.

Counsel also commented on Ceballos’s defense, including her belief—expressed

at the time of her arrest—that she had been set up by her ex-husband in a ploy

to avoid his child-support obligations. Accordingly, the Government had reason

to question Agent McCarthy regarding Ceballos’s statements at the time of her

arrest: to test whether Ceballos advised the agents of the misunderstanding

and of the plot against her. As a result, we cannot say that Ceballos has

discharged her burden, on plain error, to establish that the direct-examination

testimony was “manifest[ly] inten[ded]” to comment on her silence or was of

such a character as to lead the jury “naturally and necessarily” to so construe

it, Carter, 953 F.2d at 1464. See also United States v. Whitaker, 592 F.2d 826,

830 (5th Cir. 1979) (finding no Doyle violation where prosecutor intended for

the witness to comment on actual statements made by the defendant yet

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inadvertently caused the witness to comment on the defendant’s silence).

Further, given the substance of his opening statement, defense counsel at least

arguably opened the door to the challenged testimony. See, e.g., United States

v. Martinez–Larraga, 517 F.3d 258, 268 (5th Cir. 2008) (recognizing an

exception to Doyle that permits a prosecutor to reference a defendant’s

post-Miranda silence in order to respond to some contention of the defendant

concerning her post-arrest behavior).

As for the testimony on cross-examination, not only were the

objectionable statements elicited by defense counsel rather than by the

Government, but they were directly responsive to the questions posed. The

question to Agent McCarthy was whether he asked “[Ceballos] if she wanted

to make any statements,” and the question to Agent Contreras pertained to the

process of completing a CBP report—including, critically, how and why the

report came to omit Ceballos’s statement to Agent McCarthy that she had been

at the location to collect child support. In neither case can we say, through the

prism of plain error, that the manifest intent of the witness’s remarks, or their

natural and necessary construction, was to comment on Ceballos’s silence in a

way that improperly implied her guilt. See Carter, 953 F.2d at 1464.

2. Improper Closing Argument

Ceballos next complains of the following remarks by Government counsel

during closing argument:

The Defense has argued that the Defendant is an honest

person and a person of integrity and a hard worker. Well, she may

very well be a hard worker, certainly working at 7-11 long hours.

It sounds like an honest day[’]s pay for an honest day’s work, and

that is to be admired. Now, ladies and gentlemen, moonlighting,

trying to get a quick buck, is not honorable. It’s not something a

person with integrity does.

She is not the embodiment of the immigrant that we want in

this country. There are people lined up for miles and miles to get

into this country, to afford themselves of the benefits that she has.

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She chose to try to make a quick buck by transporting

undocumented aliens.

....

. . . She is not the ideal immigrant that we want more of in this

country.

Ceballos avers that these comments become “suspect” when viewed

together with the “opening tone of the case set by the trial judge.” In support,

she points to statements by the district court, immediately after the jury was

impaneled, announcing the court’s intention to screen a brief video honoring

veterans and extolling the virtues of citizenship. Specifically, the court stated:

“[S]o many of the freedoms that we enjoy in this country, and there are many

in serving on this bench, I’m reminded every day how wonderful it is to be a

citizen of the United States.” The court also invited veterans in the courtroom

to stand and be recognized, and Ceballos contends that one of the prosecutors

rose. Again, Ceballos lodged no objections, so our review is for plain error. See

United States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013), cert. denied, 134 S.

Ct. 1514 (2014).

“[A] prosecutor is confined in closing argument to discussing properly

admitted evidence and any reasonable inferences or conclusions that can be

drawn from that evidence.” Id. (internal quotation marks omitted). “Except to

the extent the prosecutor bases any opinion on the evidence in the case, he may

not express his personal opinion on the merits of the case or the credibility of

witnesses.” United States v. Alaniz, 726 F.3d 586, 616 (5th Cir. 2013) (internal

quotation marks omitted).

This Court looks at the challenged “closing argument in the context of

the trial as a whole, recognizing that inappropriate prosecutorial comments,

standing alone[,] will not justify reversal of a conviction obtained in an

otherwise fair proceeding.” United States v. Thompson, 482 F.3d 781, 785 (5th

Cir. 2007) (alterations and internal quotation marks omitted). The ultimate

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inquiry on review is “whether the prosecutor’s remarks cast serious doubt on

the correctness of the jury’s verdict.” Id. (internal quotation marks omitted).

To answer this question, we consider “(1) the magnitude of the prejudicial

effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction

by the judge, and (3) the strength of the evidence supporting the conviction.”

Id. (internal quotation marks omitted). We “assume that a jury has the

common sense to discount the hyperbole of an advocate, discounting the force

of the argument,” United States v. Vaccaro, 115 F.3d 1211, 1216 (5th Cir. 1997),

and we consider whether the argument had some foundation in the record and

whether it responded to an argument presented by the defense, see id.

Ceballos has not demonstrated, for purposes of our stringent plain-error

review, that the prosecutor’s closing remarks were clearly improper—no less

that they cast serious doubt on the correctness of the verdict. See Thompson,

482 F.3d at 785. As the Government observes, the defense’s summation focused

on Ceballos’s good character, portraying her as an honest, hardworking legal

immigrant with integrity who was an easy target for her ex-husband José. In

fact, defense counsel described Ceballos as “the embodiment of the spirit we

need here in America” and “the kind of person that America wants in the

United States.” Viewed in context, the Government’s remarks constituted

proper rebuttal, seeking to focus the jury not on its sympathy for Ceballos but

instead on her disregard for the country’s immigration laws. See Vaccaro, 115

F.3d at 1216. Moreover, even if the comments were improper, they were

presumptively cured by the district court’s jury charge, which instructed the

jury to “base [its] verdict solely upon the evidence without prejudice or

sympathy” and advised the jury that argument by counsel was not evidence.

See Reagan, 725 F.3d at 492 (“[T]he district court can purge the taint of a

prosecutor’s prejudicial comments with a cautionary instruction, even, in some

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cases, one that is merely generic.” (quoting United States v. Turner, 674 F.3d

420, 439–40 (5th Cir. 2012) (internal quotation marks omitted)).

Ceballos’s argument concerning the “opening tone of the case” is

unavailing as well. Not only is the record devoid of evidence to corroborate

Ceballos’s description of the video and her allegation that a prosecutor received

recognition as a veteran, but, as the Government points out, the trial took place

one week after Memorial Day—a national holiday commemorating military

service. Further, the district judge’s remarks followed voir dire, which

concluded with the judge’s expression of gratitude to the venire panel for their

civic service. While we do not condone the district court’s decision to air a

patriotic video before a criminal trial on charges of transporting illegal aliens

for financial gain, we cannot say that this—either alone or in combination with

the other alleged improprieties—plainly violated Ceballos’s right to a fair trial.

See Delgado, 672 F.3d at 344.

As we have rejected each of Ceballos’s claims of error, the cumulative-

error doctrine has no application to this case. See id.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Ceballos’s conviction.

25