Argued and Submitted May 13, 2013 —San Francisco, California
Appeal from the United States District Court D.C. Nos. 4:09-cr-02343-FRZ-GEE-1, 4:09-cr-02343-FRZ-GEE-2 for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding
Francisco Leon (argued), Law Office of Francisco Leon, P.C., Tucson, Arizona; Rosemary Márquez (argued), Márquez Law Firm, P.L.L.C., Tucson, Arizona, for Defendants-Appellants.
Erica McCallum (argued), Assistant United States Attorney; George Ferko, Special Assistant United States Attorney; John S. Leonardo, United States Attorney; Christina M. Cabanillas, Appellate Chief, United States Attorney's Office, Tucson, Arizona, for Plaintiff-Appellee.
Before: M. Margaret McKeown and Paul J. Watford, Circuit Judges, and Algenon L. Marbley, District Judge. [*]
The panel affirmed convictions for conspiracy to commit hostage taking, hostage taking, and harboring an alien, but vacated sentences and remanded for resentencing.
The panel held that the district court did not abuse its discretion in permitting a case agent to testify as an expert witness. The panel explained that the agent's testimony had some probative value, and that because any error was harmless, the panel did not need to decide whether the district court erred in failing to distinguish clearly between the defendant's expert and percipient testimony and in failing to offer a cautionary instruction. The panel noted the longstanding precedent that bias is for the jury to consider in determining the weight to accord the testimony.
The panel vacated the district court's application to defendant Bonilla-Guizar of a two-level leadership enhancement under U.S.S.G. § 3B1.1(c), where the record was unclear whether the district court found Bonilla managed another participant in the crime. The panel instructed that the enhancement may be applied at resentencing on remand only if the district court makes such a finding based on evidence on the record.
The panel held that the district court committed plain error affecting substantial rights by applying to Bonilla and defendant Calixtro-Bustamante an enhancement under U.S.S.G. § 2A4.1(b)(3) for use of a dangerous weapon, where the district court predicated the enhancement upon a legal misunderstanding that brandishing the firearm was sufficient.
Defendants-Appellants, Yuris Bonilla-Guizar and Carlos Armando.Calixtro-Bustamante, appeal their respective criminal convictions in a joint trial in the United States District Court for the District of Arizona ("district court") as well as their subsequent sentences. Bonilla-Guizar ("Bonilla") was convicted of conspiracy to commit hostage taking and harboring an alien. Calixtro-Bustamante ("Calixtro") was convicted of conspiracy to commit hostage taking, hostage taking, and harboring an alien. Bonilla and Calixtro both object to the following district court rulings: (1) permitting a case agent to testify as an expert witness; and (2) denying Defendants' request for a limiting instruction to the jury or other cautionary measure regarding the case agent's testimony. With respect to his sentence, Bonilla objects to the district court's application of a two-level enhancement, under U.S.S.G. § 3B1.1(c), for his alleged leadership role in the criminal activity. Finally, both Bonilla and Calixtro object to the district court's application of a two-level sentencing enhancement, under U.S.S.G. § 2A4.1(b), for use of a dangerous weapon.
On appeal, we consider whether the district court erred in allowing Case Agent Jeffrey Ellis ("Agent Ellis") to testify as an expert and, if it did not, whether the district court nevertheless erred in failing to provide a cautionary instruction to the jury regarding his testimony. Defendants contend they were denied a fair trial because Agent Ellis mixed factual testimony with expert testimony, and was biased for the Government. On those grounds, Defendants seek a reversal of their convictions and remand for a new trial.
We also consider alleged sentencing errors. Bonilla argues that the district court erroneously applied the two-level leadership enhancement to his sentence because the court had not found that Bonilla supervised another participant in the crime. In addition, Defendants both contend the district court was wrong to apply a further two-level enhancement for use of a dangerous weapon because the Government did not prove that Appellants possessed actual firearms or "used" any weapon beyond merely "brandishing" one. Hence, if we affirm Defendants' convictions, they alternatively seek to vacate and to remand their sentences.
For the reasons set forth herein, we AFFIRM Defendants' convictions. We VACATE, however, the district court's application of a two-level leadership enhancement to Bonilla and the application of a two-level enhancement to Bonilla and Calixtro for use of a dangerous weapon.
In mid-September, 2009, Julio Cesar Lopez-Trujillo ("Lopez") arranged to enter the United States illegally, from Mexico, with assistance from alien smugglers. Lopez crossed into the United States with five other aliens and two guides. Upon crossing into Arizona, the guides instructed the aliens to enter a truck waiting on the side of the road. Another guide, called "El Flaco, " drove the truck while communicating via handheld transceiver with someone named "Yuri, " later identified as Bonilla. Bonilla told El Flaco to drive to a particular restaurant and remain there. Bonilla himself then arrived at the restaurant driving a small car, and instructed El Flaco to follow him in the truck. The group eventually arrived at a group of trailers near Tucson, Arizona. Lopez and the other aliens were then moved into a trailer.
Two hours after Lopez arrived at the trailer, Bonilla informed Lopez that he would have to pay $2, 300 for the assistance entering the U.S., rather than the $1, 500 which Lopez had been quoted in Mexico. Bonilla ordered Lopez to call his wife to ask for the money. On September 22, 2009, Lopez called his wife to tell her he would not be released unless she sent his captors $2, 300. Two days later, Calixtro spoke to Lopez's wife on the phone, and gave her instructions for sending the money.
Lopez testified that Bonilla and Calixtro were armed during the time he was held hostage. In particular, Lopez described one gun Defendants possessed which was black and gray, approximately eight inches in length, and had a laser sight and a magazine "loaded from underneath." Lopez also testified that both Defendants pointed that weapon at his head.
At approximately 7:40 p.m. on September 24, 2009, federal agents freed Lopez and four other hostages. Federal agents stated that, during the operation, they recovered two firearms, including one very similar to the gun Lopez described. The Government was unable to produce either of those firearms at trial because, according to the Government, they were accidentally destroyed while in the laboratory.
At trial, the Government called Immigration and Customs Enforcement ("ICE") Special Agent Jeffrey Ellis ("Agent Ellis") to testify as an expert witness on alien smuggling and alien smuggling operations. Agent Ellis had worked fifteen years for ICE and its predecessor, the Immigration and Naturalization Service. For much of that time, he investigated human smuggling. Agent Ellis was also the original ICE case agent investigating Bonilla and Calixtro. As part of the investigation, Agent Ellis prepared the search warrant for the trailers where Lopez was found and worked on the case for approximately four months. On cross-examination, Agent Ellis admitted his bias for the Government in this case. The district court, nevertheless, qualified Agent Ellis as an expert witness and elected not to give the jury any cautionary instruction with regard to his testimony. Defendants' trial counsel made evidentiary objections to both rulings.
The jury found Bonilla guilty of conspiracy to commit hostage taking and harboring an alien for private financial gain. At his sentencing, the district court applied a base offense level enhancement of two for his role as "a manager of some sort" in a criminal enterprise. The district court applied a second two-level enhancement for Bonilla's use of a firearm in the commission of a crime. Those enhancements raised Bonilla's base offense level under the sentencing guidelines from ...