United States v. Acosta

United States Court of Appeals
Fifth Circuit
F I L E D
January 9, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-51691
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT ACOSTA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 3:04-CR-2698-2
______________________________
Before SMITH, BENAVIDES, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Robert Acosta claims a violation of his
Sixth Amendment right to confront a hostile
witness. We affirm.
I.
While conducting routine surveillance at an
El Paso truck stop, police officer Jose Lucero
observed a car with Chihuahuan license plates
pull up to an empty flatbed truck.1 Juan Mar-
rufo exited the car’s passenger seat, and he
and the driver of the car unloaded two large
bags from the car and handed them to some-
one inside the truck. The two then re-entered
1 Chihuahua is a state of Mexico. Lucero tes-
tified that this was significant because of the high
number of drug arrests involving cars with
Chihuahuan license plates.

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2
the car and drove to the truck stop’s conve-
nience store. Lucero followed and observed
Marrufo enter the store, after which the car
left the truck stop. Suspecting narcotics
smuggling, Lucero requested assistance from
border patrol agent Gilbert Almanza, who ar-
rived approximately fifteen minutes later. The
two officers observed Marrufo leave the store
and enter the cab of the truck to which he had
earlier delivered the two bags.
The officers approached the truck and dis-
played their police credentials. Marrufo was in
the driver’s seat and consented to a search of
the truck, during which Almanza’s canine
alerted to the presence of narcotics. Marrufo
summoned Acosta, who exited the truck’s
sleeper compartment. A hidden compartment
was discovered that contained forty bundles of
cocaine weighing just over eighty-six pounds
and worth approximately $500,000.
Before Acosta’s trial, Marrufo pleaded guil-
ty. In addition to providing a statement artic-
ulating the factual basis of his guilty plea, Mar-
rufo made an additional statement to qualify
for a “safety valve” sentence reduction: He
said he had been employed in June by the
trucking company owned by Acosta’s brother
and had driven for the company without inci-
dent until October, when Acosta approached
him with the proposition of making additional
money by smuggling cocaine. Initially hesi-
tant, Marrufo agreed when Acosta demon-
strated the sophistication of the truck’s hidden
compartment.
After Marrufo agreed to help smuggle co-
caine, he was assigned to drive with Acosta to
El Paso. At the truck stop they were called, as
planned, with instructions for picking up the
drugs. Marrufo met the courier, whom he did
not know, and helped transfer two large bags
of cocaine from the courier’s car to Acosta,
who was waiting in the truck’s cab. Marrufo
purchased a wrench from the convenience
store, which Acosta used to open the compart-
ment where the drugs were concealed. The
two were arrested shortly thereafter.
Marrufo was called as a government wit-
ness at Acosta’s trial. Before testifying, he ap-
peared outside the jury’s presence and in-
formed the court that, because he feared for
the safety of his family, he did not want to tes-
tify. Although he did not state the source of
his fear, it appeared, and the court inferred,
that it was because of threats from Acosta.
The court ordered Marrufo to testify, had
Acosta confined following that day’s proceed-
ings, and had Acosta’s communications moni-
tored.
Marrufo testified that he was a team driver
with Acosta and that the purpose of their visit
to the truck stop was to pick up cocaine. He
said Acosta was the only other person in the
truck. After answering questions about his
own involvement in the offense, he refused to
answer severalquestions about Acosta’s direct
participation in the crime.2 Several of these
questions referenced Marrufo’s safety valve
statement and the statement that was the fac-
tual basis of his guilty plea.3 Acosta did not
object to the questions.
2 Marrufo refused to answer, inter alia, who in
the truck received the bags of cocaine from him,
whether he discussed the cocaine with Acosta,
whether Acosta showed him the hidden compart-
ment, and whether Acosta knew about the plan to
pick up the cocaine.
3 An example is the following: “You stated in
that statement that when we got to the tractor, we
took the bags with cocaine out of the car, and
I handed them to Robert. You said that in your
statement, didn’t you?”

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3
On cross-examination Marrufo did not re-
fuse to answer any of Acosta’s questions.
Acosta probed Marrufo’s motives in making
his prior statements. Acosta elicited testi-
mony, over the government’s objection, that
Marrufo had believed that he would receive a
more lenient sentence if he implicated Acosta.
The court found that Acosta’s questioning was
designed to impeach Marrufo by illustrating a
motive to lie. Marrufo was not cross-exam-
ined about the portions of his prior statements
that implicated Acosta.
The government moved to admit Marrufo’s
safety valve statement, and the court admitted
it with a limiting instruction, finding that Acos-
ta’s questioning had opened the door to the
evidence. It was admitted to show that Mar-
rufo’s trial testimony was not, as Acosta had
suggested, a recent fabrication.
Lucero was recalled to testify about state-
ments Marrufo made during his safety valve
debriefing. Acosta made his first Sixth
Amendment objection at that point, which was
overruled because the court found that Acosta
had opened the door to the admission of those
portions of the statements that bore directly on
Marrufo’s cross-examination testimony. On
the final day of trial, Acosta made an unsuc-
cessfulSixth Amendment objection to the gov-
ernment’s initial questioning of Marrufo. He
was convicted of conspiring to possess with
the intent to distribute, and possession with the
intent to distribute, five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 846 and
841 (a)(1) and (b)(1)(A)(ii).
II.
The Confrontation Clause of the Sixth
Amendment guarantees the right to confront
hostile witnesses.4 We review, for plain error
only, any Confrontation Clause issues that
were not contemporaneosly raised at trial.5
Confrontation Clause objections that were
properly raised at trial are reviewed de novo,
subject to harmless error analysis.6
In Crawford v. Washington, 541 U.S. 36
(2004), the Court fundamentally altered the
role of the Confrontation Clause. Twenty-four
years before Crawford, the Court collapsed the
Confrontation Clause into the hearsay rules of
the Federal Rules of Evidence in Ohio v. Rob-
erts, 448 U.S. 56 (1980), holding that state-
ments of unavailable witnesses could be admit-
ted, consistent with the Confrontation Clause,
if they were reliable. Reliability was estab-
lished by showing that a statement either met
a “firmly rooted hearsay exception” or bore
“particularized guarantees oftrustworthiness.”
Id. at 66. In Crawford the Court replaced the
Roberts standard with a bright-line rule: The
Confrontation Clause prohibits the admission
of an out-of-court testimonial statement unless
the witness is unavailable and the defendant
had a prior opportunity to cross-examine the
witness. Crawford, 541 U.S. at 59.
III.
Acosta claims three Confrontation Clause
violations: the government’s questioning of
4 “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the wit-
nesses against him.” U.S. CONST. amend. VI.
5 United States v. Holmes, 406 F.3d 337, 347
(5th Cir.) (citing United States v. Cartwright,
6 F.3d 294, 300 (5th Cir. 1993); FED. R. CRIM. P.
52(b)), cert. denied, 126 S. Ct. 375 (2005).
6 United States v. Jimenez, 464 F.3d 555, 558
(5th Cir. 2006) (quoting United States v. Bell, 367
F.3d 452, 465 (5th Cir. 2004)).

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4
Marrufo, the admission of the safety valve
statement, and Lucero’s testimony about Mar-
rufo’s statements. We address each in turn.
A.
Acosta asserts that the government’s ques-
tioning of Marrufo about his prior statements,
during which Marrufo refused to answer some
of the questions, violates the Confrontation
Clause. Acosta did not object when these
questions were asked, so we review for plain
error.7 “[T]he plain-error exception to the
contemporaneous-objection rule is to be ‘used
sparingly, solely in those circumstances in
which a miscarriage of justice would otherwise
result.’” Id. (quoting United States v. Young,
470 U.S. 1, 15 (1985)).
Crawford bars the admission of testimonial
statements unless the defendant had the oppor-
tunity to cross-examine the witness. Though
the Crawford Court did not define “testimo-
nial,”8 it listed several examples of statements
that are testimonial under any definition: “prior
testimony at a preliminary hearing, before a
grand jury, or at a former trial; and . . . police
interrogations.” Crawford, 541 U.S. at 68.
The government’s questions to Marrufo refer-
enced two prior statements: the factual basis of
his guilty plea and his safety valve statement.
Both were used at Marrufo’s sentencing pro-
ceeding, so both are testimonial under Craw-
ford.
The next step of the Crawford analysis asks
whether Acosta had the opportunity to cross-
examine Marrufo about his prior statements.
Each party relies largely on a single case, and
neither case is directly on point.
The government relies on In re Brown, 457
F.3d 392 (5th Cir. 2006), for the proposition
that as long as a witness is available for cross-
examination Crawford’s requirements are sat-
isfied. Brown, an eve-of-execution habeas ap-
peal, found, inter alia, that Crawford does not
apply where cross-examination of a witness is
available, even if it is limited. Id. at 395.
Based on this, the government claims that
Crawford’s requirements are satisfied if a de-
fendant has at least some ability to cross-ex-
amine.
For two reasons, this imputes a more
sweeping interpretation than Brown can bear.
First, the Confrontation Clause issue was not
squarely before the Brown court. The court
found three distinct procedural bars to
Brown’s Confrontation Clause claim, and thus
even if there had been a Crawford violation the
court was barred from considering it.9 Sec-
ond, during the trial Brown was permitted to
cross-examine the witness on nearly every as-
pect of her testimony; the sole limitation was
on the witness’s marital status, which the court
found to be only marginally relevant.10 This is
unlike Marrufo’s testimony, which goes to the
7 United States v. Cartwright, 6 F.3d 294, 300
(5th Cir. 1993) (citing United States v. Beaumont,
972 F.2d 91, 95 (5th Cir. 1992)).
8 “We leave for another day any effort to spell
out a comprehensive definition of ‘testimonial.’”
Crawford, 541 U.S. at 68.
9 The court found that (1) Brown had raised the
argument in his certificate of appealabilty and thus
was procedurally barred from raising it in his ha-
beas petition; (2) Brown did not proffer any newly
discovered evidence that was not included in his
prior claim; and (3) even if his appeal was a proper
Crawford claim, Crawford does not apply retroac-
tively on habeas review. Brown, 457 F.3d at 395.
10 See Brown v. Dretke, 419 F.3d 365, 375-76
(5th Cir. 2005), cert. denied, 126 S. Ct. 1434
(2006).

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5
heart of the government’s case. For these rea-
sons, Brown provides little guidance.
Acosta relies on Douglas v. Alabama, 380
U.S. 415 (1965), in which a convicted defen-
dant was called to testify at his codefendant’s
trial. Because he intended to appeal his con-
viction, the witness did not answer any ques-
tions, invoking his Fifth Amendment privilege,
even after the judge ordered him to testify.
The prosecutor then introduced an alleged
confession of the witness by reading the con-
fession and periodically asking the witness,
“Did you make that statement?” Each time the
witness responded by asserting his Fifth
Amendment privilege. After the entire docu-
ment had been read, the government called
three law enforcement officers to testify that
the statement had been made by the witness.
In Douglas the witness’s testimony consti-
tuted the only evidence that the defendant had
committed the crime, and there was no indica-
tion that the witness’s “refusal to answer was
procured by the petitioner.” Id. at 420. The
Court held that, because the witness refused to
answer any questions or to acknowledge mak-
ing the statement, the defendant had no oppor-
tunity to cross-examine the witness about the
statement, and thus its admission through the
government’s questions violated the Confron-
tation Clause. Id. at 419.
The government’s questioning of Marrufo
can be distinguished from the situation in
Douglas and does not run afoul of the Con-
frontation Clause, for four reasons. First,
Marrufo admitted making the prior testimonial
statements. One of the bases for the holding in
Douglas was that the witness never admitted
making the statement; the defendant could not
cross-examine the witness about a statement
the witness did not acknowledge as his own.11
In contrast, Marrufo admitted making both the
factual basis of his plea agreement and the
safety valve statement. He also testified that
his safety valve statement was truthful.
Therefore Acosta could cross-examine him
effectively.
Second, despite Acosta’s accusations to the
contrary, Marrufo answered several questions
about Acosta’s involvement in the offense.
Marrufo acknowledged that he was a team
driver with Acosta and that Acosta was driv-
ing with him in the truck to El Paso to pick up
a shipment of narcotics and was the only other
person in the truck. These statements alone
could implicate Acosta, because Marrufo was
seen handing the cocaine to someone in the
truck, and given that he testified that Acosta
was the only other person in the truck, it could
be inferred that Marrufo was handing the bags
to Acosta. But even without this inference,
because Marrufo testified about Acosta’s pres-
ence at the time of the offense, he could be
cross-examined on this testimony.
Third, Acosta could impeach Marrufo
about his motives in making his prior state-
ments or discredit his testimony by attacking
his perceptions during the offense. In fact, this
is exactly what Acosta did when, on cross-ex-
amination, he impeached Marrufo by suggest-
ing that he had lied in his prior statements be-
cause he thought that if he implicated Acosta
he would receive a more lenient sentence.
Acosta could have similarly attacked Marru-
fo’s perception of the events leading up to, and
11 “[E]ffective confrontation of [the witness]
was possible only if [the witness] affirmed the
statement as his. However, [he] did not do so, but
relied on his privilege to refuse to answer.” Doug-
las, 380 U.S. at 420.

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6
during, the crime. This is unlike the situation
facing the defendant in Douglas, who could
not ask any questions of the non-responsive
witness.
Finally, and perhaps most importantly,
Marrufo answered every question he was
asked on cross-examination. The tactical de-
cision by a defendant to forego cross-examina-
tion does not create a constitutional viola-
tion.12 In Crawford, 541 U.S. at 59 n.9, the
Court held that “when the declarant appears
for cross-examination at trial, the Confronta-
tion Clause places no constraints at all on the
use of his prior testimonial statements . . . .
The Clause does not bar admission of a state-
ment so long as the declarant is present at trial
to defend or explain it.”
On cross-examination Acosta made a tac-
tical decision to refrain from asking Marrufo
about the questions he refused to answer on
direct examination and from asking him about
his earlier statements implicating Acosta. As
we have explained, Acosta could have probed
either of these subjects on cross-examination.
These four reasons illustrate the novelty of
Acosta’s Crawford claim. Although we do not
speculate as to hypothetical outcomes, if Mar-
rufo had steadfastly refused to answer all ques-
tions about Acosta’s involvement, had denied
making the prior statements, and had refused
to answer questions on cross-examination, we
might face a Crawford problem to which
Acosta might be entitled to relief, even under
the imposing plain error standard. In fact, if
Marrufo had refused to answer a single ques-
tion on cross-examination the Crawford analy-
sis could have been challenging.
But Marrufo acknowledged Acosta’s pres-
ence during the offense and acknowledged
making the prior statements. Thus, both of
these subjects could be reached on cross-ex-
amination. Acosta made a tactical decision to
avoid these questions, and Marrufo answered
every question he was asked on cross-exami-
nation. Thus Crawford does not apply.
B.
Next, Acosta objects to the admission of
Marrufo’s written safety valve statement. He
did not raise this objection at trial, so we re-
view for plain error. Holmes, 406 F.3d at 347.
The admission of this statement, however, sur-
vives even de novo review, because it was not
admitted to establish the truth of the matter
asserted and because Acosta opened the door
to its admission.
Under Crawford, 541 U.S. at 59 n.9, the
Confrontation Clause does not bar the use of
testimonial statements for purposes other than
establishing the truth of the matter asserted.
The district court found that the safety valve
statement showed that Marrufo’s trial testi-
mony was not a recent fabrication and demon-
strated prior inconsistent statements concern-
ing the questions Marrufo refused to answer.
The court admitted the statement with the lim-
iting instruction that it was “not being allowed
into evidence to prove whether the contents of
the exhibit are true or not true. In other
words, it is not being offered to establish the
truthfulness of what it says.”
Juries are presumed to follow limiting in-
structions. United States v. Bieganowski, 313
F.3d 264, 288 (5th Cir. 2002). Because the
statement was not admitted to establish the
truth of the matter asserted, it does not contra-
vene Crawford.
Even if the statement were not being admit-
12 See, e.g. Lowery v. Collins, 996 F.2d 770,
771-72 (5th Cir. 1993).

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7
ted for purposes other than asserting its truth,
its admission would be permissible, because
Acosta invited the error. If a defendant injects
otherwise inadmissible evidence, “the defense
cannot later object to such ‘invited error.’”13
In his cross-examination of Marrufo, Acosta
made a tactical decision to discredit Marrufo’s
safety valve statement by presenting it as a
concession made to please the government and
asserting that Marrufo was being evasive at
trial because he feared a perjury conviction.
This opened the door for the statement’s ad-
mission to rebut the impression that Marrufo’s
reluctance to testify was based on a fear that
his statements at trial contradicted an earlier
statement in which he lied to obtain a more
lenient sentence.
C.
Finally, Acosta claims that the court vio-
lated the Confrontation Clause when it permit-
ted Lucero to testify about Marruo’s prior
statements. This is the only issue to which
Acosta properlyraised a Crawford objection at
trial, and thus we review de novo.
Lucero referenced statements Marrufo
made during his safety valve debriefing. These
statements were made during a police interro-
gation, so they are testimonial. Crawford, 541
U.S. at 53, 68. Lucero’s testimony does not
contravene Crawford, because Marrufo was
available for cross-examination, for three rea-
sons. First, he admitted having made the state-
ment to Lucero. Second, Lucero’s testimony
was limited to those topics about which Mar-
rufo had already testified. Third, even if this
testimonywere otherwise inadmissible, Acosta
opened the door to its introduction.
Marrufo admitted making the statement to
Lucero. It was materially different for the wit-
ness in Douglas, who did not acknowledge
making the statement attributed to him. Be-
cause Marrufo acknowledged the statement as
his, Acosta could have cross-examined him
about it. See supra Part III.A.
Lucero’s testimony was limited to topics
Marrufo had testified about earlier in the trial.
Marrufo denied stating that he had conspired
with Acosta to conceal and deliver the cocaine
or that Acosta was involved in the offense.
When Lucero was called for redirect and
Acosta objected, the court limited the ques-
tioning “to those issues that [the government]
specifically addressed Marrufo on.” The gov-
ernment followed these instructions and asked
Lucero only about the prior statements of
Marrufo that contradicted his earlier denial
that he admitted Acosta was involved.14
13 United States v. Green, 272 F.3d 748, 754
(5th Cir. 2001) (quoting United States v. Raymer,
876 F.2d 383, 388 (5th Cir.1989)).
14 The government’s short questioning of Lu-
cero on redirect, in its entirety, follows:
Q: Agent Lucero, did Mr. Marrufo indicate to
you how he became aware that there was a hid-
den compartment located in the tractor that we
previously discussed?
A: Yes, sir.
Q: How was that?
A: He was made aware by Mr. Robert Acosta.
Q: Did Mr. Marrufo indicate to you who had
loaded the compartment?
A: Yes, sir.
Q: And what did he indicate to you?
A: He told me that Robert Acosta had loaded
(continued...)

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8
Because Lucero testified only about topics al-
ready covered by Marrufo, Acosta could have
cross-examined Marrufo on these subjects.
Finally, Acosta opened the door. During
his cross-examination of Marrufo, Acosta im-
peached Marrufo’s credibility by showing that
Marrufo stood to gain from implicating Acos-
ta. Acosta thus implied that Marrufo’s reluc-
tance to testify was driven by a fear of perjur-
ing himself or contradicting his earlier state-
ments to police. This opened the door for the
government to introduce evidence showing
that Marrufo’s trial testimony was not a recent
fabrication. Even if the questions to Lucero
were not otherwise admissible, they could be
admitted to rebut Acosta’s insinuations.
AFFIRMED.
14(...continued)
the compartment.
Q: Did Mr. Marrufo indicate anything to you
regarding whether or not gloves could be used
to handle narcotics to avoid fingerprints?
A: Yes, sir, he did.
Q: And what did he tell you?
A: He told me that they were going to use
gloves to handle the bundles.
Q: Did Mr. Marrufo indicate anything to you
regarding whether he and Mr. AcostaSSand this
particular statement I am talking about before
the events that occurred on November 10 of
2004SSof whether they thought they would get
caught if they engaged in this venture?
A: Mr. Marrufo stated that based on how well
the hidden compartmentSShow well it was hid-
den, that they wouldn’t be caught.

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