                                                    NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 09-3496
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                          JOSE ANTONIO SANTIAGO,
                                            Appellant
                                _____________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       District Court No. 2-05-cr-00032-003
                  District Judge: The Honorable Juan R. Sánchez


                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 March 30, 2012

             Before: FUENTES, SMITH, and JORDAN, Circuit Judges

                              (Filed: April 30, 2012)

                             _____________________

                                    OPINION
                             _____________________




SMITH, Circuit Judge.

                                         1
      Jose Santiago was tried, convicted, and sentenced for: conspiracy to commit

hostage taking, in violation of 18 U.S.C. § 1203(a); hostage taking, in violation of 18

U.S.C. §§ 1203(a) and 2; and using a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. §§ 924(c) and 2. Santiago appeals his judgment and

sentence. We will affirm.

                                          I. 1

      Prior to October 8, 2004, Santiago and co-defendants Alexis Villegas and Angel

Mejia agreed to kidnap Carlos Correa (“Correa”). The co-defendants sought to obtain $1

million in ransom from Gustavo and Rosemary Correa (respectively “Gustavo” and

“Rosemary”), who were Correa’s parents and successful restaurateurs. Both Mejia and

Villegas had previously worked at the Correas’ diner and knew Correa.

      Early in the morning of October 8, 2004, Mejia and Villegas broke into Correa’s

home, brandished firearms, and forced Correa into their vehicle. Mejia and Villegas

drove Correa to Santiago’s home. The co-defendants then forced Correa into Santiago’s

shed at gunpoint, blindfolded him, and locked the shed door. The co-defendants met

inside Santiago’s home, discussed ransom plans, and then Mejia and Villegas returned to

their respective homes, leaving Santiago to watch Correa. Villegas, using Correa’s cell

phone, called Rosemary and told her that they had her son and demanded a ransom of $1

million. Rosemary contacted the West Chester, Pennsylvania police department. Co-

defendants placed a series of ransom calls to Rosemary and Gustavo during the period of


1
 “After a jury verdict, we review the facts in the light most favorable to the verdict.”
United States v. Jimenez, 513 F.3d 62, 69 (3d Cir. 2008).
                                           2
October 8-10.

       The parties agreed to conduct the ransom exchange in the evening of October 10 at

a specified bridge. The co-defendants tied Correa’s hands and feet, blindfolded him, and

forced him into Mejia’s car at gunpoint. Mejia, who was armed, drove towards the

prearranged location. Santiago and Villegas, both of whom were also armed, drove

separately in Santiago’s car. Once they were in the vicinity of the bridge, Villegas exited

Santiago’s car and entered Mejia’s car.       Santiago drove away to conduct counter-

surveillance. As Mejia’s car neared the bridge, Villegas exited and hid nearby. Gustavo,

accompanied by two law enforcement officers, waited in a car on the other side of the

bridge. Mejia untied Correa, ordered him to sit on a bridge guardrail, and instructed

Gustavo to drive forward with the money. As Gustavo drove forward, Mejia fired his

gun in the general direction of Correa. The FBI SWAT team responded, and Mejia drove

off while firing at the agents. The officers secured Correa and arrested Mejia after a brief

car chase. From Mejia’s car, the officers recovered a handgun and a cell phone, both of

which Santiago purchased.

       When the shooting occurred, Villegas fled by running into a creek. Santiago

drove to meet Villegas and took him to Santiago’s house.           On October 11, agents

executed a search warrant at Santiago’s home. Both Santiago and Villegas were arrested.

The agents recovered a handgun from Santiago’s pants. The agents found two other guns

in the bedroom where Santiago and Villegas slept.         These three guns and the gun

recovered from Mejia’s car were registered to Santiago. The agents found Correa’s cell


                                             3
phone inside Santiago’s car. 2

         Prior to trial, the District Court granted Santiago’s motion for the production of

Correa’s computer hard drive. Santiago alleged that Correa accumulated significant

gambling debts and that information from the hard drive would likely support Santiago’s

theory that Correa staged his own kidnapping in order to obtain ransom money to cover

those debts.

         Tami Loehrs, Santiago’s computer forensics expert, reviewed Correa’s hard drive

and drafted a memorandum of her results. Loehrs found various files indicative of child

pornography and emails suggesting that Correa had solicited prostitutes, several online

poker applications, miscellaneous financial information, a video game titled “River City

Ransom,” and a reference to a website that included the words “A Little Kidnapping

Never Hurt Anyone.”

         The government moved to limit any cross-examination regarding Correa’s

possession of child pornography to issues bearing on Correa’s potential bias (e.g.,

whether Correa was cooperating with the government to avoid criminal charges).

Santiago countered that, pursuant to Fed. R. Evid. 404(b), he should be permitted to

question Correa as to evidence of his possession of child pornography, solicitation of

prostitutes, and gambling. Santiago argued that this evidence supported his revised

theory that Correa staged his own kidnapping to cover his expenses related to gambling

and his sexual interests. The government disputed this theory, noting that there was no


2
    Both Mejia and Villegas pled guilty to various counts related to kidnapping Correa.
                                              4
evidence that Correa was in significant debt.

       On August 18, 2008, a hearing was held on the government’s motion to limit

cross-examination of Correa. Santiago’s counsel conceded at this hearing that Correa

was “not in debt” and that there was no evidence he had a gambling problem. Santiago

argued, however, that the evidence from Correa’s hard drive demonstrated a sex

addiction. Santiago asserted that although Correa was solvent, he still had a financial

motive to stage his own kidnapping because the evidence from the hard drive

demonstrated an escalating pathology for viewing pornography and frequenting

prostitutes. In sum, Santiago argued that Correa needed additional money to feed his

growing sexual addiction. The District Court agreed, at Santiago’s request, to reserve

ruling on the government’s motion until defense counsel obtained a report from a

psychologist opining on Correa’s alleged sex addiction.

       On August 25, 2008, Dr. Timothy Foley, Santiago’s expert psychologist, issued a

report. Dr. Foley—based on his review of Correa’s emails, Internet history, financial

records, and Loehrs’s forensic analysis—concluded that there was substantial support for

finding that Correa exhibited “sexually addictive” behavior and “compulsive use of the

Internet” prior to his abduction in October 2004. Notably, Dr. Foley did not interview

Correa and could not conclude that Correa had a sex addiction. Dr. Foley was also

unable to determine the amount of money that Correa spent on his sexual conduct or

whether Correa’s income was insufficient to support that conduct.

      On August 29, 2008, following jury selection for Santiago’s trial, the government

moved to preclude Dr. Foley’s testimony. The government argued that Dr. Foley’s
                                            5
testimony was not relevant because there was no evidence that Correa’s sexual conduct

caused financial distress. The government also argued that Dr. Foley’s testimony would

be unduly prejudicial because it was intended to inflame and mislead the jury. Santiago

countered that Dr. Foley’s testimony was probative of Correa’s purported motive because

Dr. Foley would “explain that people do extreme things because of sex.”

      The District Court, pursuant to Fed. R. Evid. 403, granted the government’s

motions, limiting the cross-examination of Correa regarding child pornography to issues

bearing on Correa’s potential bias and precluding other evidence concerning Correa’s

sexual history, conduct, or preferences. The court reasoned that an inquiry into the

explicit details of the child pornography found on Correa’s computer would be

“misleading, unfairly prejudicial, confusing to the jury, and irrelevant, substantially

outweighing any probative value.” Dkt. # 220 at n.1. Similarly, the court excluded the

other evidence of Correa’s sexual conduct and preferences because Santiago failed to

demonstrate that the “probative value outweigh[ed] the substantial prejudice of such

inflammatory, confusing, and misleading evidence.”        Id.   Thus, the court limited

Santiago’s cross-examination of Correa’s sexual behavior to the following: “the fact that

child pornography was found in Correa’s personal computer, that the local and federal

governments did not bring criminal charges against Correa, that Correa understood the

minimum and maximum penalties of the potential criminal charges, and any benefit or

leniency Correa may receive for testifying.” Id.

      Near the close of the government’s case, Santiago announced his intention to call

Loehrs as an expert witness. Santiago’s counsel proffered that Loehrs would testify
                                            6
about certain items found on Correa’s computer, namely “the gambling portion,”

Correa’s ability to communicate anonymously through certain software, and that Correa

purportedly erased certain files. The government countered that such testimony was not

relevant. On September 9, 2008, the District Court, pursuant to Fed. R. Evid. 402 and

403, denied Santiago’s request to present Loehrs’s testimony because it was not relevant

or probative to the issue of whether Correa staged his kidnapping and the jury may be

“confused by the evidence of erasure and misled into concluding that Correa’s crimes or

character are material to its judgment in this case.” Dkt. # 231 n.1.

       During Santiago’s case-in-chief, he again sought to call Loehrs as an expert

witness. Santiago made a new proffer, stating that Loehrs would testify about what she

found on Correa’s computer related to: gambling; financial information (e.g., Correa’s

communications with prostitutes); “anonymizing” software; a reference to the “River

City Ransom” video game; a reference to a website that included the words “A Little

Kidnapping Never Hurt Anyone”; and certain information regarding pornography and

child pornography. The government moved to preclude this testimony. On September

11, 2008, the District Court granted the government’s motion, precluding Loehrs from

testifying because: Correa’s gambling was not relevant because Santiago failed to

demonstrate a connection between Correa’s gambling and a motive to stage his own

kidnapping; Correa’s financial statements were inadmissible hearsay; testimony as to

Correa’s use of “anonymizing” software was previously excluded in the court’s

September 9 Order; the textual reference to a website referring to kidnapping and the

video game were highly prejudicial and outweighed any probative value; and evidence of
                                             7
Correa’s membership to pornographic websites was irrelevant without any evidence

linking his memberships to monetary expenditures. Dkt. # 234 n.1.

       The jury convicted Santiago of conspiracy to commit hostage taking, hostage

taking, and use of a firearm in relation to a crime of violence. The District Court

sentenced Santiago to 319 months’ imprisonment. Santiago timely appealed.

                                            II. 3

                                             A.

       Santiago argues that the District Court violated his Sixth Amendment right to

confront Correa by precluding cross-examination as to his alleged sex addiction. We

disagree. 4

       Although the Confrontation Clause “guarantees a criminal defendant the right to

confront witnesses on cross-examination, a district court retains wide latitude insofar as

the Confrontation Clause is concerned to impose reasonable limits on such cross-

examination based on concerns about . . . harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive or only marginally relevant.” United


3
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291.
4
  We review a district court’s “limitation on cross-examination for abuse of discretion.”
United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008); see also United States v.
Kellogg, 510 F.3d 188, 191 (3d Cir. 2007). Santiago asserts that de novo review is
applicable because, inter alia, the District Court erred in placing the burden under Rule
403 on Santiago. It is immaterial as to which standard we apply because Santiago cannot
prevail under the more generous de novo standard.



                                             8
States v. Jimenez, 513 F.3d 62, 76 (3d Cir. 2008) (quotation marks omitted).

       Courts often rely on Rule 403 when limiting cross-examination. Under Rule 403,

courts may exclude relevant evidence if its “probative value is substantially outweighed

by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury.”

       The District Court did not err in limiting Correa’s cross-examination pursuant to

Rule 403.    Santiago sought to demonstrate that Correa’s sexual conduct created a

financial motive to stage the kidnapping. However, there was no evidence that Correa

was in debt or that Correa’s income was insufficient to satisfy his sexual activities.

Further, we are not persuaded by Santiago’s reliance on Correa’s emails claiming to be

“broke.” Correa made those claims while negotiating prices with prostitutes. As the

potential purchaser, Correa had the incentive to understate his ability to pay.

Consequently, the context of Correa’s claims that he was “broke” eviscerates any serious

probative value. In sum, without a connection between Correa’s sexual activities and his

financial condition, evidence of Correa’s sexual conduct has little probative value for

demonstrating a financial motive to stage the kidnapping. 5

       Similarly, the District Court did not err in concluding that unfair prejudice or the

risk of jury confusion would substantially outweigh the minimal probative value of such

cross-examination. Evidence of Correa soliciting prostitutes and viewing pornography

would likely inflame the jury. Moreover, Correa’s sexual proclivities were not on trial


5
  Restricting Santiago’s cross-examination of Correa’s sexual conduct was reasonable
and did not completely preclude Santiago from demonstrating a financial motive. For
example, Santiago was able to cross-examine Correa generally about his financial status
and expenditures without referencing the exact nature of those expenditures.
                                              9
and the introduction of such extensive evidence on cross-examination would likely

mislead and confuse the jury as to the central issues in the case. 6 Accordingly, the

District Court did not err by limiting Correa’s cross-examination under Rule 403.

                                            B.

       The District Court did not abuse its discretion by precluding the expert testimony

of Dr. Foley and Loehrs. 7 As to Dr. Foley, Santiago proffered that he would have

testified that the “contents of Correa’s computer were consistent with sex addiction and

that sex addicts, like other addicts, will go to extreme means to satisfy their addictions.”

Appellant’s Br. at 86.    Dr. Foley’s report concluded generally that Correa’s sexual

conduct “consumed much of [his] time and resources . . . to the exclusion of other

activities.” We agree with the District Court that Dr. Foley’s testimony would have had

only minimal probative value.      Dr. Foley did not interview Correa and could not




6
  Contrary to Santiago’s assertions, district courts may exclude probative evidence
pursuant to Rule 403 in criminal cases based on concerns that the government will be
unfairly prejudiced. See, e.g., Jimenez, 513 F.3d at 76 (holding that the district court did
not abuse its discretion by relying on Rule 403 to limit cross-examination of the
government’s witness); United States v. Ellis, 156 F.3d 493, 497-98 (3d Cir. 1998)
(same); United States v. Boyer, 694 F.2d 58, 60 (3d Cir. 1982) (same).

                                            10
determine the amount of money, if any, Correa spent when accessing pornographic

websites or hiring prostitutes. Similarly, Dr. Foley’s report did not conclude that Correa

needed additional revenue to maintain or increase his sexual activities. Dr. Foley also did

not conclude that Correa’s income prior to the kidnapping was insufficient to satisfy his

sexual interests. Because Dr. Foley was unable to directly link Correa’s sexual conduct

to a motivation for additional income, Dr. Foley’s testimony would have had minimal

probative value.   Dr. Foley’s testimony would likely have unfairly prejudiced the

government’s prosecution by inflaming and misleading the jury as discussed supra in

Section II.A. Thus, the District Court did not abuse its discretion by excluding Dr.

Foley’s testimony under Rule 403.

       Moreover, the District Court did not abuse its discretion by precluding Loehrs

from testifying. Santiago asserts that Loehrs would testify about: (1) the video game

titled “River City Ransom” and a reference to a webpage containing the phrase “A Little

Kidnapping Never Hurt Anyone”; (2) evidence that Correa was “broke”; and (3) Correa’s

gambling.


7
  We review a district court’s preclusion of expert testimony for abuse of discretion.
United States v. Mitchell, 365 F.3d 215, 233 (3d Cir. 2004).
        Santiago asserts that our review should be de novo because the District Court
failed to conduct an on-record balancing of the 403 factors. We are not persuaded. The
District Court’s Order limiting cross-examination, when read in context with the court’s
on-record statements made at oral argument, demonstrates that the District Court
considered and weighed the probative value of the evidence against any unfair prejudice
or confusion that the cross-examination might cause. See, e.g., United States v. Sriyuth,
98 F.3d 739, 745 n.9 (3d Cir. 1996) (stating that we apply an abuse of discretion standard
where evidence is excluded under Rule 403 unless the court fails to explain its grounds
for excluding the evidence and its reasons for doing so are not apparent from the record).

                                            11
       As to the video game and webpage, Loehrs could testify only as to their respective

titles and could not provide a description of their content. In the instant circumstances,

the titles, without more, are not relevant because they do not have a tendency to make any

fact at issue more or less probable than it would be without the title evidence. See, e.g.,

Fed. R. Evid. 401(a). The jury would be left to speculate as to the content of the game or

the website, and thus, the District Court did not err in excluding this evidence.

       As to Correa’s financial condition, Loehrs would testify that Correa, while

soliciting sex through e-mails, represented on several occasions that he was “broke.” As

discussed supra Section II.A, we agree with the District Court that the context of these

representations—haggling over prices—diminishes any probative value. The District

Court also did not err in concluding that the probative value of this evidence was

substantially outweighed by the dangers of unfair prejudice (i.e., inflaming the jury) and

misleading the jury (i.e., placing Correa’s character on trial). See, e.g., Fed. R. Evid. 403.

       Finally, as to Correa’s gambling issues, Loehrs would testify that Correa had

access to multiple gambling websites and that he maintained spreadsheets tracking his

gambling performance. However, Correa admitted on direct examination that he played

poker for money and gambled in Atlantic City, New Jersey. Santiago questioned Correa

on cross-examination about his gambling, including gambling websites and spreadsheets.

Although there was evidence that Correa enjoyed gambling, Santiago did not produce

any evidence that Correa had any significant gambling debts or that his gambling

activities caused financial distress. Santiago failed to establish a connection between

Correa’s gambling and his alleged motive to stage his kidnapping.              Consequently,
                                             12
Loehrs’s testimony on the gambling was not relevant under Rule 401. Thus, the District

Court did not abuse its discretion in precluding Loehrs from testifying. 8




8
  Santiago’s three remaining issues are meritless. First, the District Court did not abuse
its discretion, Silveus, 542 F.3d at 1005, by denying Santiago the opportunity to conduct
recross-examination of Correa, Rosemary, and Villegas. District courts have wide
discretion to restrict recross-examination, especially when no new matters were raised on
redirect. United States v. Riggi, 951 F.2d 1368, 1374-75 (3d Cir. 1991). Here, the
government did not raise any new matters on redirect warranting recross-examination.
        Second, the District Court did not abuse its discretion, United States v. Hakim, 344
F.3d 324, 328 (3d Cir. 2003), by denying Santiago’s motion for a mistrial. During
summation, the prosecutor argued that the entry for “Carlos” at phone number “610-864-
0477” in Mejia’s cell phone contact list referred to Mejia’s nephew, not Carlos Correa.
The record supports the government’s assertion. Villegas testified that the cell phone
number for Mejia’s nephew was “610-864-0477.” Thus, a reasonable inference could be
drawn that the entry for “Carlos” in Mejia’s cell phone referred to Mejia’s nephew, not
Carlos Correa.
        Third, the District Court did not abuse its discretion by denying Santiago’s motion
for a downward variance when imposing Santiago’s sentence. See, e.g., Gall v. United
States, 552 U.S. 38, 51 (2007) (applying an abuse-of-discretion standard when reviewing
whether criminal sentences were the product of procedural error or were substantively
unreasonable). Contrary to Santiago’s assertions, the record clearly reflects that the
District Court considered Santiago’s motion and did not commit procedural error.
Notably, the District Court: heard argument from the parties at sentencing on the motion;
read Santiago’s memorandum in aid of sentencing with “great care”; and determined that
Santiago’s guideline range was appropriately calculated (neither party contends that the
guideline calculation was improper). The court also reviewed in detail the Section
3553(a) factors that were pertinent to Santiago’s sentence (e.g., the nature and
circumstances of the crime were “very serious” because they involved kidnapping at gun
point, and Santiago’s involvement was especially crucial because he mentored his much
younger co-conspirators).
        Also, the District Court did not substantively err in imposing a within-guidelines
sentence because, inter alia, Santiago: was involved in a violent kidnapping; provided the
guns to his co-conspirators; orchestrated the ransom demands; served as a mentor to his
co-conspirators; conducted counter-surveillance during the ransom exchange; and locked
Correa in his shed. Considering the violent nature of—and Santiago’s essential
participation in—the crime and the need for deterrence, Santiago’s 319-month sentence
was reasonable. Thus, the Court did not abuse its discretion.

                                             13
      Accordingly, we will affirm. 9




9
  The government moved to file Volume I of its Supplemental Appendix under seal
because it contains documents that were sealed by the District Court to protect the
privacy of a government witness. Santiago moved to file Volume VI of the Joint
Appendix under seal for the same reason. Both of these motions are granted. Because
these motions did not specify a desired duration and because none of the documents
sought to be sealed are grand jury materials, presentence reports, or statements of reasons
for the sentence, as set forth in Local App. R. 106.1(c)(1), we will direct the Clerk’s
Office to seal the materials subject to the aforementioned motions for five years from the
conclusion of the case, after which the materials are to be unsealed without notice to the
parties. See Local App. R. 106.1.


                                            14
