United States v. Sandra Ceballos, 789 F.3d 607

Background

On Dec. 18, 2012 CBP agents in El Paso detained Mexican national Abel Viera Mendez (Viera) after he attempted unauthorized entry and identified a paid smuggler (“Chucky”) who arranged domestic transport.
With Viera’s consent, Agent Torres posed as Viera during a sting call; Sandra Ceballos arrived in the described vehicle, invited the undercover agent in, and was arrested when a prearranged signal was given.
Agents found two cell phones and a notebook in Ceballos’s purse containing names ("Enrique," "José"), dollar amounts, and notations ("pick up," "deliver," dates), which the government characterized as a smuggling ledger.
The government introduced Viera’s sworn written statement and agent testimony recounting Viera’s statements; defense counsel had previously agreed to admit several government exhibits without objection to admissibility.
Ceballos was indicted and convicted for conspiracy to transport aliens for private financial gain and for transporting/attempting to transport an alien; she appealed alleging Confrontation Clause error, improper admission/authentication of the notebook (Rule 901 and Rule 404(b)), and cumulative error.

Issues

Issue	Ceballos' Argument	Government/Respondent Argument	Held
Confrontation Clause: admission of Viera’s testimony	Admission violated Sixth Amendment because Viera was not shown unavailable and Ceballos lacked prior cross-examination	Defense counsel stipulated to admission of exhibits; waiver of confrontation right; counsel’s tactical choice	Waiver: court held Ceballos waived confrontation through counsel’s unchallenged stipulation; claim unreviewable
Authentication of notebook (Rule 901)	Notebook not properly authenticated as a smuggling ledger; insufficient foundation tying writings to Ceballos	Notebook was found in Ceballos’s purse with identifying items; contents and circumstances sufficiently corroborative for preliminary authentication	No abuse of discretion: low Rule 901 threshold met; authorship/weight for jury to decide
Rule 404(b) / prior-bad-acts	Notebook contained extrinsic bad-acts evidence inadmissible under Rule 404(b)	Notations were intrinsic or probative of intent, plan, knowledge, or acts in furtherance of the charged conspiracy	No plain error: evidence at least arguably intrinsic or admissible under 404(b) purposes
Cumulative error (including Doyle and prosecutorial remarks)	Combined evidentiary errors, witnesses’ references to invocation of rights, and prosecutor/judge comments denied a fair trial	Statements were either invited by defense, responsive to defense theory, or cured by jury instructions; errors were not clear or prejudicial	No reversible cumulative error; convictions affirmed

Key Cases Cited

Delaware v. Van Arsdall, 475 U.S. 673 (1986) (Confrontation Clause guarantees right to cross-examine witnesses)
Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay barred absent prior opportunity to cross-examine and unavailability)
United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (defense counsel may waive defendant’s Sixth Amendment confrontation right by stipulation)
United States v. Musquiz, 45 F.3d 927 (5th Cir. 1995) (waiver renders confrontation claim unreviewable)
United States v. Reveles, 190 F.3d 678 (5th Cir. 1999) (defendant need not personally express assent for counsel’s tactical waiver to be effective)
United States v. Wake, 948 F.2d 1422 (5th Cir. 1991) (authenticating written ledgers found in defendant’s possession is permissible on circumstantial foundation)
United States v. Arce, 997 F.2d 1123 (5th Cir. 1993) (ledgers recovered from co-conspirator’s location can be authenticated by content and context)
Puckett v. United States, 556 U.S. 129 (2009) (plain-error review requires clear or obvious error affecting substantial rights)
Jimenez-Lopez v. United States, 873 F.2d 769 (5th Cir. 1989) (preliminary showing of authenticity suffices; ultimate weight is for the jury)