     Case: 08-40186     Document: 00511150714          Page: 1    Date Filed: 06/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 22, 2010

                                       No. 08-40186                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee
v.

RUBEN CABRERA SAUCEDO, also known as Kiko;
CHRISTOPHER JAIME CARDENAS,

                                                   Defendants – Appellants




                   Appeals from the United States District Court
                        for the Southern District of Texas
                                No. 5:07-cr-00452-3


Before DeMOSS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellants Ruben Cabrera Saucedo (Cabrera) and Christopher Jaime
Cardenas (Cardenas) (collectively “Appellants”) were convicted by a jury of
conspiracy to kidnap, aiding and abetting a kidnapping, and brandishing a
firearm during a crime of violence. Finding the evidence sufficient and finding
no reversible error in the district court’s instructions to the jury or in the
admission of certain evidence, we affirm.


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 08-40186

                                       I.
      In 2007, Appellants were socializing, as they frequently did, at a pool
house in Laredo, Texas, with Enrique Adriano, Mateo Ezequiel Solis (Solis), and
Santos Martinez. Adriano and Rogelio Isai Garcia (Garcia) resided in the pool
house, which was situated on property owned by Mario Obregon. Adriano was
questioning Solis about various rumors Solis had heard involving Lauro Pablo
Valdez (Valdez), one of Obregon’s employees. Eventually, Adriano summoned
Valdez to the pool house for direct questioning. Valdez arrived with Obregon.
Adriano began to question Solis and Valdez in the main room of the pool house.
Adriano eventually focused his attention back on Solis, whom he came to believe
was planning on stealing from Obregon. During Solis’s questioning, Adriano,
Martinez, and the Appellants were armed. Adriano, Martinez, and Cardenas
assaulted Solis with their weapons.
      Throughout the questioning, Adriano and Obregon would leave the main
room of the pool house to speak in private. When Adriano emerged, he
announced that he had a “green light” to take Solis “to the other side” of the
international border into Nuevo Laredo, Mexico. Adriano and Obregon again
went into the second room, where Adriano could be heard speaking on a two-way
radio. Soon after the radio conversation, Garcia arrived at the pool house.
Adriano, Garcia, and Obregon again left the room to speak in private. When they
emerged, Adriano repeated that he was taking Solis “to the other side.” Adriano
and Garcia drove Solis across the border, where Adriano shot Solis once in the
head and once in the back. Solis was able to make his way to a roadway where
he was found by Mexican police officers.
      Upon his return to the United States, Solis provided a statement to
federal agents. A search of the property uncovered two assault rifles, a shotgun,
and two bayonets. A square of carpeting in the main room had also been
removed. Blood samples taken from the pool house matched Solis’s DNA.

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       On July 17, 2007, Appellants were indicted on one count of conspiracy to
kidnap in violation of 18 U.S.C. § 1201 (count one), one count of aiding and
abetting a kidnapping in violation of 18 U.S.C. §§ 2 & 1201 (count two), and one
count of brandishing a firearm during the conspiracy or kidnapping in violation
of 18 U.S.C. §§ 2 & 924(c) (count three). The jury found Appellants guilty on all
counts.1 Cardenas was sentenced to a total of 391 months of imprisonment.
Cabrera was sentenced to a total of 272 months of imprisonment. Appellants
timely appealed the district court’s order denying their motion for judgment of
acquittal, evidentiary rulings, and alleged errors in the jury instructions.
                                             II.
       Appellants contend that the evidence was insufficient to establish that
they knowingly and intentionally kidnapped or conspired to kidnap Solis.
Specifically, Appellants assert that the Government failed to prove beyond a
reasonable doubt that they knowingly and willfully agreed to detain and
transport Solis, or that they derived any benefit from Solis’s kidnapping. They
argue that the evidence establishes only mere presence, not voluntary
participation in the commission of the crime.
       Because the Appellants moved for a judgment of acquittal under Federal
Rule of Criminal Procedure 29 at the close of the Government’s case and again
at the close of all the evidence, this court reviews de novo their sufficiency
claims. See United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009). This court
considers the evidence presented in the light most favorable to the Government
to determine whether a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. See United States v. Lopez-


       1
        Obregon and Martinez were indicted with the Appellants. Martinez pleaded guilty to
count one pursuant to a plea agreement and testified for the government. Obregon and the
Appellants were tried together. Obregon appealed his convictions separately. See United States
v. Obregon, No. 08-41317, 2010 WL 1286876, at *2 (5th Cir. Mar. 31, 2010) (finding the
evidence sufficient to support the jury’s guilty verdict).

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Moreno, 420 F.3d 420, 437-438 (5th Cir. 2005). All reasonable inferences and
credibility determinations are resolved in support of the verdict. See United
States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002). “We reverse only if
a reasonably minded jury must necessarily have entertained a reasonable doubt
as to the existence of the essential elements of the crime.” United States v.
Crosby, 713 F.2d 1066, 1071 (5th Cir. 1983) (citing United States v. Davis, 666
F.2d 195, 201 (5th Cir. 1982)).
                                       A.
      To prove an offense of kidnapping pursuant to 18 U.S.C. § 1201, the
Government must establish “(1) the transportation in interstate [or foreign]
commerce (2) of an unconsenting person who is (3) held for ransom or reward or
otherwise, (4) such acts being done knowingly and willfully.” United States v.
Barton, 257 F.3d 433, 439 (5th Cir. 2001) (citing United States v. Osborne, 68
F.3d 94, 100 (5th Cir. 1995)). To prove the crime of aiding and abetting, the
Government must establish that the kidnapping occurred and that the
Appellants “(1) associated with the criminal venture; (2) purposefully
participated in the crime; and (3) sought by [their] actions for it to succeed.”
United States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007) (citing United
States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001)).
      Finally, to prove an offense of conspiracy to kidnap pursuant to 18 U.S.C.
§ 1201(c), the Government must establish that (1) an agreement existed between
two or more people to pursue the offense of kidnapping, (2) the Appellants knew
of the agreement, and (3) voluntarily participated in the conspiracy. See United
States v. Montgomery, 210 F.3d 446, 449 (5th Cir. 2000); United States v.
Bankston, 603 F.2d 528, 531 (5th Cir. 1979). A jury “may rely on presence and
association, along with other evidence thus, proof of an overt act in furtherance
of the conspiracy is not required.” Montgomery, 210 F.3d at 449. “[A]n agreement
may be inferred from concert of action, [v]oluntary participation may be inferred

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from a collocation of circumstances, and [k]nowledge may be inferred from
surrounding circumstances.” United States v. Paul, 142 F.3d 836, 840 (5th Cir.
1998) (quoting United States v. Lechuga, 888 F.2d 1472, 1476-77 (5th Cir. 1989)).
The agreement may be implicit, and the jury may infer its existence from
circumstantial evidence. See United States v. Thomas, 12 F.3d 1350, 1356-57
(5th Cir. 1994) (citation omitted). Typically, as is the case here, “the same
evidence will support both a conspiracy and an aiding and abetting conviction.”
United States v. Singh, 922 F.2d 1169, 1173 (5th Cir. 1991).
      Viewing the evidence in the light most favorable to the Government and
resolving all reasonable inferences and credibility determinations in support of
the verdict, there is sufficient evidence to support Appellants’ guilty convictions
for conspiracy to kidnap and aiding and abetting the commission of the
kidnapping. The record demonstrates that Appellants were both armed
throughout Solis’s interrogation. Cardenas ordered Solis to “get on his knees” as
the men surrounded Solis, then assaulted Solis with his weapon and demanded
that Solis “confess the truth.” Cardenas kept his rifle pointed at Solis when
Adriano left the room to speak in private with Obregon. Cabrera blocked the
front door of the pool house so that Solis could not leave. Appellants were
present in the room when, on three separate occasions, Adriano announced that
he was going to take Solis “to the other side.” The main room of the pool house
was small enough that everyone present would see and hear what was occurring.
Cabrera was initially armed with a 9mm weapon that he gave to Adriano, which
Adriano later used to shoot Solis. Finally, Cabrera was holding an AK-47 outside
the door to the pool house after Solis was taken to Mexico, while Cardenas,
Martinez, and Obregon were in the pool house cleaning up and removing a
bloodied square of carpeting.
      We find Cabrera’s assertions that he possessed a firearm to protect
himself, and not to harm Solis, insufficient to overturn the jury’s verdict. See

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United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (“[I]t is not
necessary that the evidence exclude every reasonable hypothesis of innocence or
be wholly inconsistent with every exclusion except that of guilt.” (quotations and
citation omitted)). Cardenas argues that he did not participate in the discussions
about when to take Solis into Mexico, and thus did not participate in any
planning or decision-making. However, participation in the decision-making is
not necessary to support participation in a conspiracy. See United States v.
Davis, 226 F.3d 346, 354 (5th Cir. 2000) (“A [co-]conspirator need not know all
the details of the unlawful enterprise, so long as he knowingly participates in
some way in the larger objectives of the conspiracy.”). The record demonstrates
that Appellants took specific actions, and voluntarily affiliated with a group that
undertook specific actions, that Appellants knew would cause Solis’s detention
and transportation. See Paul, 142 F.3d at 840-41. We recognize that there is
some conflicting evidence regarding Appellants’ knowledge of and participation
in the scheme to kidnap Solis. However, drawing all reasonable inferences and
resolving all credibility determinations in favor of the verdict, we cannot disturb
the jury’s finding that Appellants knowingly and voluntarily participated in
Solis’s kidnapping.
                                        B.
      Cardenas argues that the Government failed to establish that he
participated in Solis’s kidnapping for “ransom, reward, or otherwise,” a
necessary element of a kidnapping offense. See 18 U.S.C. § 1201; Barton, 257
F.3d at 439. “Or otherwise” encompasses “any benefit a captor might attempt to
receive.” United States v. Webster, 162 F.3d 308, 328 (5th Cir. 1998) (citing
Gooch v. United States, 297 U.S. 124, 128 (1936)). “The benefit, ‘for ransom,
reward, or otherwise,’ merely adds purpose to the act of holding.” Id. at 330.
      The evidence establishes that the participants of the kidnapping intended
to settle a grievance with Solis. This reason is sufficient to establish that

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Cardenas obtained some benefit from the kidnapping, thus the district court did
not err in denying his motion for judgment of acquittal.


                                             C.
       Cabrera argues that the evidence was insufficient to sustain his conviction
of brandishing a firearm during Solis’s kidnapping.2 “[A]ny person who, during
and in relation to any crime of violence . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence,” be sentenced to varying terms
of imprisonment based on the type of firearm or the nature of its use. 18 U.S.C.
§ 924(c)(1)(A).
       Cabrera admits that he was in possession of a firearm, but contends that
his use of a firearm was not necessarily in association with the kidnapping of
Solis. The record establishes that Cabrera possessed a firearm while standing
guard outside the pool house, inside in the main room of the pool house during
Solis’s questioning, and that the 9mm Cabrera possessed was later used to shoot
Solis. This evidence is sufficient for a rational trier of fact to have found beyond
a reasonable doubt that Cabrera brandished a firearm during the predicate
offenses.
                                            III.
       Cardenas argues that the district court’s jury instructions misstated the
law and confused the jury. This court reviews challenges to jury instructions for
abuse of discretion. See Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir.
2002). We will reverse the judgment “only if the charge as a whole creates a


       2
         On appeal, Cabrera and Cardenas challenge the sufficiency of the evidence to support
their convictions on this count on the basis that the evidence was insufficient to support the
predicate offenses. See United States v. Burton, 324 F.3d 768, 770-71 (5th Cir. 2003). Because
the evidence supports the convictions on the predicate offenses, we do not address this
argument.

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substantial doubt as to whether the jury has been properly guided in its
deliberations.” Id. (citation omitted). We will not disturb the judgment if the
instruction is “a correct statement of the law” and “clearly instructs jurors as to
the principles of law applicable to the factual issues confronting them.” United
States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005) (quoting United States v.
Daniels, 281 F.3d 168, 183 (5th Cir. 2002)). “Perfection is not required as long
as the instructions were generally correct and any error was harmless.” Taita
Chem. Co. v. Westlake Styrene, LP, 351 F.3d 663, 667 (5th Cir. 2003) (citation
and footnote omitted). The district court has “great latitude” when instructing
the jury on the relevant charge. See id.
                                        A.
      Cardenas first asserts that the district court erred when instructing the
jury by failing to require that it find Cardenas guilty of willful transportation.
18 U.S.C. § 1201(a)(1) prohibits the kidnapping of any person who is “willfully
transported in interstate or foreign commerce.” Cardenas contends that the
district court blended two elements of the kidnapping statute—the jurisdictional
requirement that the defendant cross a state or international boundary, with the
mens rea requirement that the victim was willfully transported. See Webster,
162 F.3d at 330 (“The ‘interstate commerce’ serves as a mere jurisdictional hook
. . . . The essence of a kidnaping is a non-consensual transporting and holding,
done wilfully or knowingly[.]”).
      The district court gave the jury the following contested instruction:
            Kidnapping means that a person is held, kept, detained,
            and confined against his will. That’s what kidnapping
            means . . . . In the federal system . . . it needs the other
            element of being transported. And the reason for that is
            to convert it into a federal case . . . . [W]hat the statute
            does is first define kidnap, and then i[t] says in order to
            make it a federal case it has to [ ] cross a state or



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             national boundary. That’s what converts it into a
             federal crime.


      Cardenas asserts that this instruction left the jury with the impression
that mere transportation over a border fulfills the element of willful
transportation.
      However, the district court also instructed the jury:
             Now, here’s what the government has to prove beyond
             a reasonable doubt. First of all, that contrary to law,
             this victim was kidnapped, seized, and confined on this
             particular occasion. Secondly, that the kidnapping was
             done for some purpose or benefit . . . . Thirdly, that the
             Defendant was then willfully transported while still
             being under seizure, under kidnapped [sic], under
             confinement. And finally that that transportation
             crossed . . . a foreign boundary.

This instruction closely tracks the language found in the Fifth Circuit Pattern
Jury Instruction for a kidnapping offense, which separates the element of willful
transportation from the requirement that the victim be transported in foreign
or interstate commerce. See F IFTH C IRCUIT P ATTERN J URY I NSTRUCTIONS
(C RIMINAL) § 2.58 (West 2001); see also United States v. Whitfield, 590 F.3d 325,
354 (5th Cir. 2009) (“It is well-settled that a district court does not err by giving
a charge that tracks this Circuit’s pattern jury instructions and that is a correct
statement of the law.”). The district court further instructed the jury that they
must find that the Appellants provided “active assistance and participation in
the scheme of transporting.” The district court instructed the jury that “if a
person joins in and performs and does something with the intent to commit the
particular crime, then the law holds him responsible for the acts and conduct of
the other persons . . . as long as he had the same common purpose [as] they did
. . . .” The court told the jury that Appellants did not have to have knowledge
that Solis would be crossing a border, but that

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              [Appellants] had to have known that they were
              assisting a crime of forcibly detaining this person,
              holding him against his will with the ultimate idea of
              removing him somewhere . . . . [Y]ou have to find that
              every element of the crime was committed and that
              each defendant somehow particularly . . . voluntarily
              and knowingly did something to assist the [commission
              of the offense].

Finally, in response to a jury note, the district court restated the elements for
the offense, again using language nearly identical to the pattern jury instruction,
and defined “willfully” as “acting voluntarily with the intent to violate the law.”
       The district court’s instructions informed the jury of the mens rea
requirement of the kidnapping statute separate from the jurisdictional element,
by requiring that the jury find that Appellants had the intent that Solis be
transported. When read as a whole, the district court’s instructions do not create
a substantial doubt as to whether the jury was properly guided in its
deliberations. See Dahlen, 281 F.3d at 494. Because the instructions were
generally correct and instructed the jurors on the principles of law applicable to
the facts of the case, we find no reversible error.3 See Freeman, 434 F.3d at 377.
                                             B.
       Cardenas also argues that the district court directed a verdict in favor of
the Government with respect the “ransom, reward, or otherwise” element of the
kidnapping statute. See 18 U.S.C. § 1201. Specifically, Cardenas argues that the
district court impermissibly commented on the Appellants’ motive for
kidnapping.



       3
        Although the instructions here do not warrant reversal, we emphasize that the trial
court should instruct the jury as clearly as possible that to find the defendant guilty of the
crime of kidnapping, it must be convinced that the government has proved each of the
essential elements beyond a reasonable doubt. See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS
(CRIM INAL ) § 2.58 (West 2001).

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      Because Cardenas did not raise this objection before the district court, we
review only for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1428
(2009); F ED. R. C RIM. P. 30(d). An instruction may be reversed for plain error if
(1) it was erroneous; (2) the error was plain; and (3) the plain error affected the
substantial rights of the defendant. See United States v. Betancourt, 586 F.3d
303, 306 (5th Cir. 2009). This court may use its discretion to correct the error
only if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993))
(alteration in original).
      A judge may not direct a verdict of guilty, and to do so is plain error. See
United States v. Saenz, 747 F.2d 930, 944 (5th Cir. 1984). We must determine
whether “the district judge’s actions, viewed as a whole . . . amount[ed] to an
intervention that could have led the jury to a predisposition of guilt by
improperly confusing the functions of judge and prosecutor.” United States v.
Lankford, 196 F.3d 563, 572 (5th Cir. 1999) (quoting United States v. Bermea,
30 F.3d 1539, 1569 (5th Cir. 1994)).
      We do not find that the district court’s comments to the jury when giving
the instructions amounted to a partial directed verdict.               The contested
instruction reads:
             [Y]ears ago, the [kidnapping] statute [required a]
             ransom . . . but . . . it was changed to put [“]or
             otherwise[”]. And the law there is that [“]or otherwise[”]
             means virtually any reason at all. That there is some
             purpose for . . . kidnapping the person. It doesn’t have
             to be money . . . . There has to be some purpose,
             whether it’s legal or illegal, that the actors thought was
             a sufficient motive to cause them to do what they did.
             So, for example, whatever was the motive, and I agree
             with one of the lawyers that . . ., and again, this is my
             opinion, which you are not bound by. But it
             seemed to me, as you listened to this case, the motive
             sort of was a rumor . . . or a threat against somebody.

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            But it . . . seems to me that one conclusion you could
            draw is that the motive was simply- for whatever
            reason, was to. . . punish this person, to harm him and
            dispose of him because of some perceived grievance.
            And that would be the [“]or otherwise[”] . . . . So I’ll say
            to you there’s no evidence here of a ransom or a reward.
            And the question is, is there some other motive .
            . . that motivated the people to . . . [kidnap Solis].


(emphasis added).
      Taking the court’s instructions as a whole, its statements regarding the
motive for the kidnapping amounts to a comment on the weight of the evidence,
not a directed verdict. “It is within [the trial judge’s] province, whenever he
thinks it necessary, to assist the jury in arriving at a just conclusion by
explaining and commenting upon the evidence, . . . provided he makes it clear
to the jury that all matters of fact are submitted to their determination.” Saenz,
747 F.2d at 945 (quoting Quercia v. United States, 289 U.S. 466, 469 (1933)). The
district court stated that its comment was only an opinion with which the jury
was not bound to agree. See United States v. Inocencio, 40 F.3d 716, 730 (5th
Cir. 1994) (“[A] judge may comment on the evidence to facilitate the jurors’ task
of reaching a proper verdict so long as the judge advises them that they are not
bound by his comments.”). Further, the district court gave general instructions
that the jury should base its decision on the law and the evidence, and that it
was free to accept or reject the evidence and interpret such evidence as it saw fit.
See United States v. Hefferon, 314 F.3d 211, 222 (5th Cir. 2002) (“Juries are
presumed to follow their instructions.”). The court instructed the jury that it had
the ultimate authority to determine Appellants’ guilt or innocence, and properly
instructed the jury that it must find Appellants guilty on all elements of the
charges. See Saenz, 747 F.2d at 944-45. Thus, the district court’s comments were
not sufficiently “quantitatively and qualitatively substantial” to pose any threat



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to the fairness of Appellants’ trial. Lankford, 196 F.3d at 572. Because Cardenas
has failed to demonstrate that the district court plainly erred in instructing the
jury on his motive for kidnapping Solis, or that any error affected his substantial
rights, we find no reversible error.
                                        IV.
      Cabrera asserts that the district court erred in the admission of certain
evidence. Because Cabrera did not object to the admission of the evidence before
the district court, this court reviews only for plain error. See United States v.
Thompson, 454 F.3d 459, 464 (5th Cir. 2006). To demonstrate plain error,
Cabrera must show that the error was clear or obvious and that it affected his
substantial rights. See id. This court will not correct an error unless it “has a
serious effect on the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Alvardo-Santilano, 434 F.3d 794, 795 (5th Cir.
2005).
      Cabrera argues that the district court erred in admitting evidence that he
pawned jewelry worn by Solis; evidence establishing the nature and extent of
Solis’s physical injuries; and evidence characterizing Cabrera as a security guard
during Solis’s interrogation. Cabrera has failed to demonstrate that admission
of this evidence was clear or obvious error or that it affected his substantial
rights. We find no reversible error in the district court’s evidentiary rulings.
                                        V.
      We find that the evidence was sufficient to support the jury’s convictions
of the Appellants on all counts. The district court’s order denying Appellants’
motion for judgment of acquittal is affirmed. We further find no reversible error
in the district court’s instructions to the jury or its evidentiary rulings.
AFFIRMED




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