United States v. Montes-Salas

Case: 10-41167 Document: 00511737785 Page: 1 Date Filed: 01/26/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 26, 2012

No. 10-41167

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CESAR OMAR MONTES-SALAS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Cesar Omar Montes-Salas appeals his conviction on four counts related to

illegal alien trafficking, challenging his conviction on two grounds. First,

Montes-Salas maintains that the district court erred in admitting expert

testimony by two federal law enforcement agents regarding (1) the usual

locations of passengers in the vehicles used to transport illegal aliens; (2) the use

of multiple bailouts in illegal alien trafficking; (3) the role of guides; and (4) the

relationships among drivers, guides, and recruiters. Second, he argues that an

agent’s statement identifying a particular phone number as belonging to Montes-

Salas’s unindicted co-conspirator was inadmissible double hearsay because the

agent was merely repeating what another agent had told him and the other

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No. 10-41167

agent, in turn, had merely repeated information provided by the sister of one of

the illegal aliens apprehended with Montes-Salas. We affirm.

I.

A grand jury indicted Cesar Montes-Salas on four counts: conspiracy to

unlawfully transport illegal aliens, conspiracy to conceal or harbor illegal aliens,

and two counts of harboring or concealing illegal aliens, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii), (iii), (v)(I), and (a)(1)(B)(I).

At trial, Border Patrol Agent Eluid Rodriguez testified that on January 12,

2010, he was conducting a roving patrol on a highway notorious for alien

dropoffs and alien smuggling with three other agents: Nestor Yanez, Daniel

Santos, and Roman Paz. When they stopped at Highway 281, a red Dodge Ram

pickup truck passed the agents, heading north on Highway 281. Although only

two passengers in the truck were visible, the pickup was riding low in back. As

the agents pulled alongside the pickup truck, Rodriguez observed that the driver

(later identified as Montes-Salas’s co-conspirator, Jose Ivan Hernandez-Torres)

had a rigid posture. Montes-Salas was sitting in the passenger’s seat, and the

driver was speaking to Montes-Salas but not looking at him.

Agent Rodriguez instructed Agent Yanez to slow down to allow for a check

of the license plate. While he was waiting for the results, Agent Rodriguez

observed two adult male heads pop up and back down in the truck. In Agent

Rodriguez’s experience, it was common for back seats to be removed from trucks

in order to hide illegal aliens. Agent Rodriguez decided to stop the truck, but it

made an abrupt turn, hit a crossover, and slowed down, at which time two people

jumped from the front passenger door and fled. Agent Rodriguez approached the

truck as it was slowing and attempted to open the driver’s door. As he reached

the door, the truck sped away. Agent Rodriguez identified Montes-Salas as one

of the two individuals who fled the truck. The other individual appeared to be

a young, thin male wearing dark clothing.

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Agents Paz and Santos also testified that when their vehicle first pulled

up alongside the red pickup, they had seen Montes-Salas sitting in the passenger

seat. After the door to the red pickup opened and Montes-Salas and the other

individual fled, Agents Paz and Santos pursued Montes-Salas and the other

individual on foot, ultimately apprehending Montes-Salas. Montes-Salas had a

cell phone in his pocket when he was apprehended.

With their lights activated, Agents Rodriguez and Yanez continued the

pursuit of the pickup truck. According to the agents’ testimony, the pickup truck

continued to drive for five to seven miles before stopping on the shoulder of the

highway and allowing several individuals to exit and flee. Some exited the back

passenger door of the truck and opened the tailgate to allow others to flee.

Seven were apprehended by the agents, all illegal aliens from either India or the

Dominican Republic.

At the border patrol station, one alien from India asked to call his sister

to tell her that he had been apprehended and prevent her from paying more

money toward services no longer available. He informed Agent Rodriguez that

all the arrangements for smuggling were made with “Carlos” and gave Agent

Rodriguez Carlos’s phone number.

At trial, Agent Rodriguez explained that guides are common in a

smuggling operation and are responsible for leading people across the river and

to the checkpoint. The guide would have a phone and know the contact and the

area. Agent Rodriguez stated that it was common for a group to have more than

one guide and that the guides often sit in the front of the vehicle for an easier

escape. He said had seen similar situations with multiple bailouts. He

explained that the first stop would be to separate the guides from the group,

allowing the guides to escape. The guides later rejoin the group of aliens and

attempt to smuggle them again. He testified that the aliens could be in the bed

of the truck or in the cabin, but would be concealed. In addition, he testified

about how alien smugglers are compensated and about alien smuggling routes.

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Officer Frank Lozano, a state trooper with the Texas Department of Public

Safety, testified that he was working on January 12, 2010 when he was advised

via radio to be on the lookout for a red Dodge pickup truck. Minutes later,

Officer Lozano saw the truck, now traveling 111 miles per hour in a 70 mile per

hour speed zone, and chased it for seven miles. The driver then lost control, and

the truck rolled several times. The driver fled but was ultimately apprehended.

Officer Lozano found several backpacks inside and outside the vehicle. The rear

seat was missing.

Gurcharan Singh (“G. Singh”), a citizen of India, testified that he was in

the United States illegally on January 12, 2010. He left India in December 2009

and traveled through Moscow, Havana, Panama, Guatemala, and Mexico before

reaching the United States. G. Singh stated that he was traveling through

Mexico with a group of people being smuggled into the country. The group

included five other Indians and three Dominicans. At the United States border,

the group of nine aliens stayed in a room for a few days where they were brought

provisions. They were then taken to the border and crossed the river by boat.

The guide led them through the brush to a vehicle. The guide returned to

Mexico, and the nine aliens entered the vehicle. They were taken to a house and

stayed only a few minutes. There was no furniture in the house, only a young

man, under 18, whom Singh identified as “Carlos.”

A pickup truck arrived and transported the aliens to another house. The

group remained in the house until the owner and his wife began fighting. Carlos

then transported the nine aliens to a third house in two trips. Upon arriving at

the third house with the second group, G. Singh saw Montes-Salas. He stated

that Montes-Salas opened the door to the house, led the aliens upstairs to a

room, and showed them the location of the bathroom. It was understood that

the aliens were to remain in the room. The door to the room was closed and the

nine aliens inside went to sleep. Montes-Salas did not sleep in the room with

them. In the morning, Montes-Salas brought pizza and Cokes into the room

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where the aliens had been sleeping. After that, G. Singh did not see Montes-

Salas again.

G. Singh testified that the next morning, he got into the bed of a pickup

truck. There were four aliens in the bed, and he was the last to get in. He was

covered with something like a mattress. Shortly after the vehicle began driving,

G. Singh heard sirens and noticed that the vehicle was traveling at a fast rate

of speed. The vehicle then slowed down, and he heard someone urging him to

jump, and then he jumped out of the truck and fled. He was apprehended and

taken to the border patrol station. While there, he gave the authorities Carlos’s

phone number. G. Singh explained that he had used Carlos’s cell phone to call

his sister and therefore Carlos’s number was stored on his sister’s phone.

Anderson Fernandez-Del Orbe, one of the aliens from the Dominican

Republic, testified that Montes-Salas spent the night outside the door to the

aliens’ room with Carlos, that Carlos told Montes-Salas to give the aliens

blankets, and that Carlos told Montes-Salas to help him bring pizza into the

aliens’ room.1 When Fernandez-Del Orbe had first arrived at the third house,

he saw Montes-Salas standing near the kitchen, eating. Fernandez-Del Orbe

had arrived with the first group, which included four people – Fernandez-Del

Orbe, two other Dominicans, and one of the Indians. The next morning, Carlos

told the aliens to go downstairs, gave them bags with Gatorade and water, and

put them in a truck. Fernandez-Del Orbe was placed in the back seat area of the

truck, along with three of the Indians and another Dominican, and covered with

his own jacket. After about an hour and twenty minutes, he heard the driver say

there was a patrol car behind them. Then the driver told the aliens to get ready

to get out of the car, and the four aliens concealed in the back of the cabin

jumped out.

1

Fernandez-Del Orbe could not be located for trial, and his deposition testimony was

presented to the jury.

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Neither G. Singh nor Fernandez-Del Orbe could see the people in the front

seats of the pickup truck.

Four aliens from the group of nine in addition to G. Singh and Fernandez-

Del Orbe testified: Balraj Singh (“B. Singh”), Hitendra Kumar Manubaal-Patel,

Sukhdeep Singh (“S. Singh”), and Tamish Kumar Kalidas-Patel.2 None of them

remembered seeing Montes-Salas at any point before they were arrested. In

addition, none was able to see the face of anyone in the front seat of the pickup

truck, though one could see someone wearing a blue jacket with a hood.

B. Singh only remembered staying in two houses after they crossed the

border. B. Singh also testified that he did not remember what the young man

who took them to the final house looked like, other than that he was wearing a

cap. He could not remember whether he was given anything to eat or drink the

next morning.

Like B. Singh, Manubaal-Patel only remembered being brought to two

houses after he crossed the border. He did not see the driver who brought them

to the final house and just followed “[s]ome Indian” into the house. He said they

went upstairs and fell asleep, and that he never saw anyone come into the room.

He testified that there were Cokes downstairs, but that he never had any. He

said that no one brought him food and he did not eat or drink for two days.

S. Singh did not see who drove them to the third house or who brought the

aliens food and drink. He testified that when he arrived at the third house,

“[t]hey took us to a room,” but when asked who took him to the room, he said he

just followed his friend who was ahead of him.

Kalidas-Patel testified that he did not see who drove them from the second

house to the third house. He testified that “[t]hose Spanish took us up[stairs]”

and that when they were all in the room “the Spanish guy went outside” and

2

Only Balraj Singh testified at trial. The other three witnesses could not be located

and so their deposition testimony was presented to the jury.

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brought the group blankets. Kalidas-Patel testified that after he took a shower

in the morning, Cokes were there.

Immigration and Customs Enforcement (ICE) Agent Anson Luna testified

that he responded to the incident at the border patrol station and obtained a

statement from Montes-Salas. Montes-Salas informed Agent Luna that he paid

$1,500 to be transported to California. He was picked up in the afternoon on

January 12, 2010, at his apartment in McAllen where he lived with his wife and

daughter. Montes-Salas claimed that he entered the red four-door pickup truck

and remained ducked down the entire time. He said the truck made one stop for

fuel. Montes-Salas told Agent Luna that his wife intended to pick him up across

the checkpoint and take him to San Antonio where he would catch a bus to

South Lake Tahoe, California. Montes-Salas stated that his uncle knew the

smuggler and paid the fee.

ICE Agent William Baer testified that he led the investigation on January

12, 2010. Agent Baer subpoenaed the phone records from the two phones

recovered from Montes-Salas and Hernandez-Torres. Montes-Salas was

identified as the cell phone subscriber on his phone, and the service area was

McAllen. Agent Baer testified that he had been told that Carlos’s phone number

was XXX-XXX-XXXX.3 He indicated that he had received this information from

Agent Rodriguez, who in turn had received it from G. Singh. The number

allegedly belonging to Carlos appeared 38 times in Montes-Salas’s phone records

for the period of January 5-12, 2010. On cross-examination, Agent Baer

conceded that he had no personal knowledge whether the phone number actually

belonged to Carlos.

In response to questioning from the government regarding the operation

of alien smuggling rings, Agent Baer testified that there are many different

people involved in various roles of a smuggling organization. He stated that

3

Baer’s testimony identified a specific number.

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there were people responsible for housing the aliens, feeding the aliens,

transporting the aliens, and collecting the money. He described the use of “stash

houses” and noted that smugglers typically group and move aliens of the same

nationality together. Agent Baer further explained that transport vehicles, or

load vehicles, normally have a guide or sometimes multiple guides in the vehicle

with the driver. It would be possible for the driver and guide to not be connected

to each other if a recruiter was involved. Recruiters are responsible for finding

people to serve as drivers and guides. However, in Agent Baer’s experience, the

driver and the guide were usually connected.

The jury convicted Montes-Salas on all counts. He was sentenced to four

concurrent terms of 37 months of imprisonment, to be followed by two years of

supervised release. Montes-Salas filed a timely notice of appeal.

II.

Montes-Salas now argues that Agent Rodriguez and Agent Baer offered

impermissible profile testimony and that Agent Baer’s statement about Carlos’s

phone number was inadmissible hearsay. Because Montes-Salas did not raise

these issues in the district court, we review for plain error.4 Under the plain

error standard of review, a defendant must show (1) error, (2) that is plain, and

(3) that affected his substantial rights.5 We will deem an error “plain” only if it

is “so clear or obvious that the trial judge and prosecutor were derelict in

countenancing it, even absent the defendant’s timely assistance in detecting it.”6

To demonstrate that an error affected his substantial rights, a defendant

generally must show that the error was prejudicial.7 Error is prejudicial if there

4

See United States v. Gonzalez-Rodriguez, 621 F.3d 354, 362 (5th Cir. 2010).

5

See United States v. Bishop, 629 F.3d 462, 468 (5th Cir. 2010) (citing United States

v. Olano, 507 U.S. 725, 731-32 (1993)).

6

Gonzalez-Rodriguez, 621 F.3d at 363 (quotation marks and citation omitted).

7

Olano, 507 U.S. at 734.

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is a reasonable probability that the result of the proceedings would have been

different but for the error.8 If a defendant establishes the first three elements,

this court may exercise its discretion to correct the error only if the error

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.”9 Satisfying the requirements of plain error review is “difficult, as

it should be.”10

III.

A.

Montes-Salas’s first argument is based on circuit precedent holding that

it is impermissible to establish that a defendant is a drug courier merely by

establishing “similarities between [a] defendant[] and a profile.”11 Under Rule

702 of the Federal Rules of Evidence, a qualified expert witness may offer

reliable opinion testimony in a criminal case if specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue.12 In

the drug trafficking context, “law enforcement witnesses are thus allowed to give

testimony about ‘the significance of certain conduct or methods of operation

unique to the drug business so long as the testimony is helpful and its relevance

is not substantially outweighed by the possibility of unfair prejudice or

confusion.’”13 However, the question of whether a defendant had the requisite

8

See United States v. Holmes, 406 F.3d 337, 365 (5th Cir. 2005) (citing United States

v. Dominguez Benitez, 542 U.S. 74, 81(2004)).

9

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (alteration in original)

(quotation marks and citation omitted).

10

Id. (quotation marks and citation omitted).

11

United States v. Sanchez-Hernandez, 507 F.3d 826, 831 (5th Cir. 2007) (quotation

marks and citation omitted).

12

FED. R. EVID. 702.

13

Sanchez-Hernandez, 507 F.3d at 831 (quoting United States v. Garcia, 86 F.3d 394,

400 (5th Cir. 1996)).

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mental state for the charged offense is an ultimate issue reserved for the trier

of fact.14 Expert testimony about traffickers’ use of drug couriers crosses the line

into impermissible profile testimony “if it amounts to the ‘functional equivalent’

of an opinion that the defendant knew he was carrying drugs.”15 In addition, as

we observed in Mendoza-Medina, “drug courier profiles ‘have long been

recognized as inherently prejudicial because of the potential they have for

including innocent citizens as profiled drug couriers,’ and therefore are not

admissible as substantive evidence of the defendant’s guilt.”16 Testimony about

the usual practices of drug smugglers may be admitted when it is not “pure

profile testimony” but rather is used to rebut the defendant’s innocent

explanation for his behavior.17

To determine whether Agent Rodriguez’s and Agent Baer’s testimony

exceeded the bounds of Rule 702, we must decide whether the agents’ statements

merely helped the jury interpret the evidence by providing background

information about an unfamiliar business, or whether the agents offered

opinions on the ultimate issues in the case.

Montes-Salas challenges Agent Rodriguez’s testimony about the role of

guides and the use of multiple bailouts in illegal alien trafficking:

Q And is it common for there to be more than one guide in a group?

A Yes.

Q And why is that?

14

FED. R. EVID. 704(b).

15

Gonzalez-Rodriguez, 621 F.3d at 363 (quoting United States v. Gutierrez-Farias, 294

F.3d 657, 663-64 (5th Cir. 2002)).

16

United States v. Mendoza-Medina, 346 F.3d 121, 128 (5th Cir. 2003) (quoting

United States v. Williams, 957 F.2d 1238, 1241-42 (5th Cir. 1992)).

17

Sanchez-Hernandez, 507 F.3d at 833.

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A Sometimes when they know we’re behind them, they’ll separate

into two groups so they will have more chance of getting away.

Another one would be -- someone will -- once they get past the

Checkpoint, they’ll stash them. They’ll hide them somewhere near

the highway and one guide will stay with them. The other one will

go up to the highway and get the pickup vehicle, and they’ll

coordinate themselves.

Q And agent, in your -- with your experience and training, can you

tell the Jury a little bit about the location in the vehicle where all of

the individuals are sitting. What’s important about that?

A I don’t understand the question.

Q What is -- usually in a vehicle, where will the guides be?

A Oh, they would be in the front, passenger or driver, whichever.

Q And why is that?

A They would have a better chance to escape if they get stopped or

anything to exit the vehicle faster, quicker.

Q And usually individuals in your experience that are being

transported, where are they in the vehicle?

A They would be in the bed or in the -- inside the cabin but the

individuals being transported would be piled up. They would be all

on top of each other, so for a guide it would make it really difficult

to get from there out, quicker.

Q And the individuals that are being transported, would they be

visible to someone driving in a vehicle?

A If -- you mean the driver can see them?

Q No, meaning other cars, or other people on the road.

A No. No.

Q Would they be hidden?

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A They would be hidden, yes.

...

Q And in your experience and training, have you seen it as in a

situation like this where there are two different or multiple bailouts.

Have you ever seen that?

A Yes.

Q And what’s the significance of that?

A Multiple -- like you say one, two vehicles bailing out same -- or

multiple bailouts, you mean by one stop, second stop?

Q Yes.

A The first stop, it would be, get the guides. Separate the guides

from the group for the purpose of the guides get away. They will

later come back and go find the group and then they will try to

smuggle them again. They will spread out the group.

Say, you’re going to have two guys over here, and the group

over here. They’ll later get picked up – they’ll get dropped off near

where the group was dropped off and they’ll look for them and then

they’ll try to smuggle them again.

Montes-Salas also challenges Agent Baer’s testimony about guides:

Q Well, Agent, other than the driver who’s driving the vehicle

taking the aliens, who else is usually involved in the

transportation of aliens?

A From my experience almost all the alien -- the transport vehicles,

we call load vehicles, they normally have a guide or sometimes

multiple guides in the vehicle with the driver. So when the group

gets dropped off -- when the group is dropped off south of the

Checkpoint they’re -- of course, if they’re from outside the area,

outside the country, they don’t know where they are so they need

somebody in order to show them the way around a Checkpoint to

their next pickup.

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In addition, he challenges Baer’s testimony that he had not seen a case in which

the driver and guide do not know each other, that they “normally know each

other,” and that the role of the recruiter is to “go out and find the drivers and

stuff like that.”

This court has not considered whether expert testimony about illegal alien

trafficking constituted impermissible profile testimony in any published opinion

or where the defense alleged that the defendant was innocent because he himself

was being smuggled. As with drug trafficking, however, we believe “there is a

fine but critical line between expert testimony concerning methods of operation

unique to the [alien smuggling] business, and testimony comparing a defendant’s

conduct to [a] generic profile” of someone engaged in that business.18

In this case, we find that most of the testimony challenged by Montes-

Salas was on the safe side of that line because the “overall context” of the

testimony establishes that the statements were part of the agent’s “legitimate

background testimony” about how an alien trafficking operation works.19 The

average juror may not be aware that illegal alien traffickers use “multiple

bailouts” and “stash houses” and is likely unfamiliar with the different roles of

guides, drivers, and recruiters in an illegal alien trafficking operation.20 It was

permissible for the agents to convey their “specialized knowledge . . . gained

through their experience in apprehending [illegal alien traffickers] who ha[d] . . .

crossed the border.”21

18

Gonzalez-Rodriguez, 621 F.3d at 364.

19

United States v. Morin, 627 F.3d 985, 996 (5th Cir. 2010).

20

See, e.g., Garcia, 86 F.3d at 400 (“The average juror may not be aware that the

presence of 166.9 kilograms of cocaine is indicative of a large drug trafficking organization,

and may not be aware that large drug trafficking organizations commonly use ‘car swaps,’

‘stash houses,’ and conduct ‘heat runs.’”).

21

Sanchez-Hernandez, 507 F.3d at 832.

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Proper characterization of testimony as profile or background turns on its

context, including its usage at trial, and Agent Rodriguez’s response to the

prosecutor’s question about where guides usually sit – “they would be in the

front” – is more problematic. However, the ultimate characterization is not so

certain that the admission of the testimony was a clear or obvious error.

“At a minimum,” plain error means error that “is clear under current

law.”22 Existing precedent does not establish where the line between background

and profile testimony would fall in this case. In an unpublished opinion in

United States v. Hernandez-Acuna, this court found that the district court

abused its discretion when it admitted a law enforcement officer’s expert

testimony about the use of camioneta operations as a “front” for illegal alien

smuggling operations.23 That testimony was found to address whether the

defendant knew he was transporting illegal immigrants and thus was “the

‘functional equivalent’ of an express comment on [the defendant’s] mental

state.”24 The panel noted that two Ninth Circuit cases cited by the government

were distinguishable “because while the expert testimony [about illegal alien

smuggling in the Ninth Circuit cases] was admitted, the agents’ comments did

not go to the defendants’ intent, knowledge, or mental state.”25

22

Olano, 507 U.S. at 734; see United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010).

23

United States v. Hernandez-Acuna, 202 F. App’x 736, 739 (5th Cir. 2006)

(unpublished).

24

Id. at 741.

25

Id. at 741 n.2. In United States v. Vaca-Hernandez, 185 F.3d 871 (Table), 1999 WL

451214 (9th Cir. 1999) (unpublished table decision), a Border Patrol special agent testified

about illegal alien smuggling operations that use a “scout car” and a “load car” and the reasons

why the smuggler does not drive the “load car.” In United States v. Salazar-Munoz, 242 F.3d

385 (Table), 2000 WL 1529233 (9th Cir. 2000) (unpublished table decision), the agent’s

testimony concerned “the methods and tactics used by smugglers to transport undocumented

aliens into the United States,” in particular “the use of commercial-type vehicles such as taxi

cabs, shuttles, buses, and limousines to convey the appearance of legitimacy in an otherwise

illegitimate enterprise.” Id. at *1.

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Here, Montes-Salas’s knowledge of the aliens’ immigration status and

nature of the operation in which he was involved was not at issue. Montes-Salas

asserts that the agents’ testimony suggested that he was a “knowing participant

in the crimes charged because he was sitting in the front passenger seat of the

Dodge Ram and exited . . . first,” but he does not specify which elements of the

charged offenses were implicated by the agents’ testimony, let alone explain how

the agents’ testimony went to mens rea specifically. In addition, the testimony

about the locations of guides versus illegal aliens in a smuggling vehicle rebutted

Montes-Salas’s “innocent” explanation for his conduct – that he was merely one

of the aliens being smuggled.26 Thus, it is not clear or obvious under current law

that Rodriguez’s statement about the guides was inadmissible under Rule 704(b)

or that it constituted the profile evidence that we have held to be inherently

prejudicial in the drug trafficking context.27 The evidence did not go to whether

Montes-Salas was in the play; it went to his role.

B.

Montes-Salas’s second argument is that the government used inadmissible

hearsay testimony to establish that Montes-Salas’s cell phone records showed

calls between him and the smuggler known as “Carlos.” Because, like the first

claim of error, this was not raised in the district court, we review for plain error

only.

Under Rule 802 of the Federal Rules of Evidence, “Hearsay is not

admissible except as provided by [the Federal Rules of Evidence] or by other

rules prescribed by the Supreme Court pursuant to statutory authority or by Act

26

See Sanchez-Hernandez, 507 F.3d at 833.

27

See, e.g., id. (“[T]he testimony was not pure profile evidence . . . . [because it] served

to rebut Sanchez-Hernandez’s innocent (at least as to the drug charges) explanation that he

was attempting to enter the country to work and was not involved in smuggling drugs on the

river that night.”); Gonzalez-Rodriguez, 621 F.3d at 353 (“In cases involving pure profile

evidence, law enforcement personnel seek to testify that because a defendant’s conduct

matches the profile of a drug courier, the defendant must have known about the drugs he was

transporting.”).

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of Congress.”28 “‘Hearsay’ is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.”29 For the purposes of the hearsay rule, “[a] ‘statement’ is

(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is

intended by the person as an assertion.”30

Here, three witnesses testified about Carlos’s phone number. On the first

day of trial, Border Patrol Agent Rodriguez testified that he allowed one of the

illegal aliens to call his sister and after the phone call to the sister, the alien

gave Rodriguez a phone number. According to Rodriguez, the alien indicated

that the number was for the cell phone of a man named Carlos, with whom the

alien had made the smuggling arrangements. Rodriguez testified that he then

gave the phone number to the ICE agent on the case. Rodriguez did not state

the specific telephone number that he was given for Carlos. Later that day, G.

Singh testified that he had given agents Carlos’s phone number – he also did not

specify the number – and that he had Carlos’s phone number because he had

used Carlos’s phone to call his sister and the number thus was saved on her

phone.

On the second day of trial, ICE Agent Baer testified that he was able to

match the phone number to a number in Montes-Salas’s phone records. Baer

testified that Rodriguez indicated he received the number from one of the

material witnesses who testified at trial, and Baer said that he “was told that

that number came from a known smuggler known as Carlos.” Baer’s cross-

examination by Montes-Salas’s counsel included the following exchange:

28

FED. R. EVID. 802.

29

FED. R. EVID. 801(c).

30

FED. R. EVID. 801(a).

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Q . . . . Now, you don’t have any personal knowledge whether that

phone number that supposedly belongs to Carlos is, in fact, Carlos’

phone number, correct? I mean you don’t have any personal

knowledge about that.

A No, that was provided to me by Border Patrol Agent Rodriguez.

Q Right. So you don’t really know whether that phone number

belongs to somebody named Carlos?

A No.

Q All right. Now let’s look at -- Let me backtrack a little bit. The

story, or let me say the way you all got that number, Carlos’ phone

number, was because G[.] Singh’s sister provided that number to

G[.] Singh who in turn provided that number to the agent; is that

your understanding?

A Yes, sir. It was understanding that the person that we know, or

the person that’s known as Carlos was a known smuggler who was

involved in this incident. Carlos allowed the material witness

Gusharon Singh to make a phone call using his cell phone. This

number that ends in [XXXX] appeared in Gusharon [sic] sister’s cell

phone and the caller ID, the number pops up. She copied that

number or saved that number and then provided it back to law

enforcement, is how I understand it, or back to her brother who then

in turn gave it to Border Patrol.

Q So this person Carlos lent the phone to the material witness,

Gusharon Singh, made the call to the sister and then that’s how his

phone number was obtained?

A Right. Because the witnesses didn’t have their own personal cell

phones.

Agent Baer’s testimony that the phone number XXX-XXX-XXXX belonged

to Carlos appears to be hearsay. Baer testified that Rodriguez had given him

that number for Carlos, and that Rodriguez had received the number from G.

Singh’s sister, via G. Singh. Contrary to Montes-Salas’s claim, the record does

not indicate that G. Singh’s sister made an “out-of-court statement that Carlos’s

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No. 10-41167

phone number was [XXX-XXX-XXX].” However, Baer’s testimony does indicate

that G. Singh’s sister stated that the phone number XXX-XXX-XXXX appeared

in her cell phone when G. Singh called her. Baer’s testimony regarding the

ownership of XXX-XXX-XXXX was hearsay insofar as it repeated the sister’s out-

of-court statement about what number appeared in her phone.31

The government argues that Agent Baer’s testimony was not hearsay

because it was “offered for the limited purpose of linking co-conspirators.” No

such exception to the hearsay rule exists. The cases cited by the government

deal with two separate hearsay exclusions, neither of which is applicable here.

First, a statement is not considered hearsay if it is made by a co-conspirator

during and in furtherance of the conspiracy.32 Here, however, the out-of-court

statement was by G. Singh’s sister, not by a co-conspirator. Second, a statement

does not fall within the definition of “hearsay” if it is not offered for the truth of

the matter asserted.33 Here the sister’s out-of-court statement that the number

XXX-XXX-XXXX had appeared in her cell phone was offered for the truth of the

matter asserted – that this number had in fact registered in the Caller ID when

G. Singh called his sister using Carlos’s cell phone.

Because the sister’s out-of-court statement regarding the number that

appeared in her phone was clearly hearsay, Montes-Salas satisfies the first two

prongs of the plain error standard on this issue, and we turn to the final two

requirements of plain error review. Montes-Salas asserts that because of “the

prosecutor’s significant reliance on” the evidence regarding Carlos’s phone

number and “in light of the tenuous circumstantial evidence against [him],” the

31

Cf. United States v. Hernandez, 166 F.3d 335 (Table), 1998 WL 841504, at *2 (4th Cir.

1998) (unpublished table decision) (holding that “Detective Gray’s testimony with respect to

what telephone number Thacker told him Mendoza dialed on his cellular phone was

inadmissible hearsay testimony” because “[Thacker’s] statement was an out-of-court statement

offered to prove the truth of the matter asserted”).

32

FED. R. EVID. 801(d)(2)(E).

33

See FED. R. EVID. 801(c)(2).

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admission of the testimony regarding Carlos’s phone number “clearly affected his

substantial rights as well as the fairness, integrity, and reputation of the judicial

proceedings.” Montes-Salas offers no further analysis and fails to meet his

burden.

First, phone records aside, the jury had ample circumstantial evidence on

which to convict Montes-Salas.34 Both G. Singh and Fernandez-Del Orbe

testified that Montes-Salas was present at the third stash house but was not

part of their group of nine. When Fernandez-Del Orbe arrived, he saw Montes-

Salas standing near the kitchen, eating. When the group including G. Singh

arrived, Montes-Salas was the one who opened the door to let them in. They

followed Montes-Salas upstairs to a room holding other aliens from the group.

Everyone from the group of nine stayed in the upstairs bedroom that night, with

the door closed, and it was understood that they were not supposed to step out

of the room. Montes-Salas and Carlos spent the night outside their door.

Fernandez-Del Orbe testified that Carlos directed Montes-Salas to give the

group blankets and later told Montes-Salas to help him bring in pizza for group.

G. Singh testified that Montes-Salas gave the group pizza and Cokes.

In addition, Agents Rodriguez, Santos, and Paz saw Montes-Salas sitting

in the passenger seat of the pick-up truck that was smuggling the aliens. Agents

also observed that Montes-Salas and the driver were speaking but not looking

at each other, and that Montes-Salas and a younger, smaller man (presumably

Carlos) bailed out before any of the aliens in the group of nine. As the

34

Montes-Salas has not specified which elements of the counts against him would be

implicated if the hearsay evidence were disregarded, but, presumably, the evidence of phone

calls between Montes-Salas and Carlos would go to the first element of each of the two

conspiracy charges, that is, that Montes-Salas and at least one other person made an

agreement to unlawfully transport aliens and an agreement to conceal or harbor aliens. As

the district court instructed the jury, the government was not required to prove that the

alleged conspirators entered into any formal agreement, nor that they directly stated between

themselves all the details of the scheme. See, e.g., United States v. Freeman, 434 F.3d 369, 376

(5th Cir. 2005) (“[I]t is well-settled that the government does not need to show that the

conspiratorial agreement was explicit or formal--proof of a tacit agreement is sufficient.”).

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government pointed out in its closing, of those apprehended by the Border Patrol

agents, only Montes-Salas and the driver had cell phones. The government also

highlighted the inconsistencies between Montes-Salas’s post-arrest statement

and the testimony of witnesses at trial. While Montes-Salas claimed he had

been picked up at 1:00 p.m. by the red pick-up truck, two of the aliens testified

that Montes-Salas was present in the third stash house when they arrived and

that he was present there the next morning. Only Montes-Salas claimed that

the red pickup had stopped for gas once. The agents testified that they saw

Montes-Salas sitting up in the front of the truck cabin; Montes-Salas claimed he

was crouching down.

Second, Montes-Salas’s argument that the government significantly relied

on the hearsay testimony regarding Carlos’s phone number in its closing

argument is without record support. In its initial closing statement, the

government did not mention Carlos’s phone number or the phone calls between

Carlos and Montes-Salas. The evidence of the phone calls was first highlighted

by defense counsel, who spent a good portion of her closing argument explaining

why the calls demonstrated that Montes-Salas was innocent of the charged

offenses. The government addressed the phone calls only in rebuttal.

Third, this is not a case in which the defense “arduously tried to prohibit

any reference to [Carlos’s phone number] during trial.”35 On cross-examination,

Agent Baer admitted that his understanding that phone number XXX-XXXX-

XXXX belonged to Carlos was not based on his personal knowledge. After

eliciting that admission, defense counsel made no objection. Instead, the defense

attempted to use the evidence of the phone calls to Montes-Salas’s advantage.

The defense noted during closing argument that the only individuals in the case

who had Carlos’s phone number were Montes-Salas and G. Singh and suggested

35

United States v. Escobar, 674 F.2d 469, 475 (5th Cir. 1982) (reversing for plain error

where “[t]here was no hint that defense counsel deliberately avoided making proper objections

in an attempt to later sandbag the prosecution”).

20

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No. 10-41167

that the number thus must have been used by people who were being

transported in order to get touch with their smuggler. The defense also pointed

out that between calls to Carlos, Montes-Salas was calling his wife, which

suggested that Montes-Salas was trying to coordinate arrangements to be

smuggled further north. Defense counsel’s attempt to use the phone records to

Montes-Salas’s advantage was a strategic choice, and an understandable one –

Montes-Salas has not disputed that XXX-XXX-XXXX was Carlos’s phone

number. Indeed, if the prosecution had been unable to rely on Baer’s testimony

that Carlos’s phone number was XXX-XXX-XXXX, it might have called G.

Singh’s sister as a witness and elicited the same testimony from her. Plain error

is not a cover for “remain[ing] quiet during the trial in hope of a favorable

verdict, but, when that fails to materialize, . . . resort[ing] ‘to appeal on errors

that might have easily been corrected by objection at trial.’”36

In sum, examined “in the context of the entire case,”37 admission of Baer’s

hearsay testimony was not prejudicial and does not seriously affect the fairness,

integrity, or reputation of this proceeding. The unobjected-to hearsay was

competent evidence that the jury was entitled to weigh in reaching its verdict.38

Montes-Salas has not demonstrated that the admission of the testimony was

reversible plain error.

36

United States v. Habel, 613 F.2d 1321, 1327-28 (5th Cir. 1980); see, e.g.,

Mendoza-Medina, 346 F.3d at 131-132 (“Warzecha’s testimony regarding statements Ramirez

made to other officers does appear to be double hearsay. . . . However. . . . [b]ecause the

Government could have elicited the same testimony from the interviewing agent, and defense

counsel likely preferred Agent Warzecha instead, the admission of Warzecha’s testimony

recounting Ramirez’s statements did not affect the fairness, integrity, or public reputation of

this proceeding and we decline to find plain error.”).

37

Mendoza-Medina, 346 F.3d at 132.

38

See, e.g., Huss v. Gayden, 571 F.3d 442, 466 n.11 (5th Cir. 2009) (Higginbotham, J.,

dissenting).

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IV.

Montes-Salas has not shown that the district court’s admission of law

enforcement officers’ expert testimony was a clear or obvious error. The district

court’s admission of Agent Baer’s hearsay testimony, while a clear error, did not

affect Montes-Salas’s substantial rights or seriously affect the fairness, integrity,

or public reputation of judicial proceedings. The conviction is AFFIRMED.

22