     Case: 18-50941      Document: 00515156661         Page: 1    Date Filed: 10/11/2019




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


                                      No. 18-50941
                                                                                FILED
                                                                         October 11, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

JAVIER FERNANDO CHAPARRO-LUNA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-41-1


Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM:*
       A jury convicted Javier Chaparro-Luna of aiding and abetting
importation of 50 to 100 kilograms of marijuana. On appeal, he challenges
three district court evidentiary decisions and argues that prosecutorial
misconduct requires reversal. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50941
               FACTUAL AND PROCEDURAL BACKGROUND
        On January 31, 2018, and in the early hours of February 1, 2018, United
States Border Patrol Agent Arturo Carrillo operated a thermal viewing device
near Van Horn, Texas.       That night, Agent Carrillo saw three individuals
walking north in an area often used for smuggling drugs from Mexico. Based
on the heat signatures, it appeared to Carrillo that the people were carrying
large backpacks that must have been rather heavy because they were leaning
forward due to the weight on their backs.         Agent Carrillo believed the
backpackers were almost certainly carrying marijuana or other narcotics. He
immediately called his supervisor.      Nearby Border Patrol agents began
tracking the three backpackers.
        Agent Carrillo kept watching the three backpackers on the thermal
device and guided the other agents to where the backpackers had crossed a
road.    The agents found shoeprints and were able to begin tracking the
backpackers. As the agents got close to them, the backpackers abandoned their
loads and began running. The agents found bags of marijuana and stopped
their chase to secure the drugs. Two of the three backpackers ran toward the
mountains. The third backpacker lingered. Agent Carrillo determined that
the third backpacker was the one hiding in the thick brush.
        After several hours of continued surveillance, an individual emerged
from the brush where Agent Carrillo believed a backpacker had been hiding.
Agent Carrillo radioed another Border Patrol Agent, Julio Chavez, who was
then able to locate and arrest this backpacker, who was the defendant,
Chaparro. The agent asked Chaparro for the location of the rest of the group.
According to Agent Chavez, Chaparro replied, “They left me” and “[h]e couldn’t
keep up no more. He was tired already.” Agent Chavez took Chaparro to an
area where the three backpackers had been walking earlier that evening.
Agent Chavez compared the shoes that Chaparro had on to the shoeprints in
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                                 No. 18-50941
the dirt. He believed the prints could have been made by Chaparro’s shoes.
Chaparro was then taken to the Van Horn Station for further questioning.
      Border Patrol Agent George Talavera informed Chaparro of his rights,
and Chaparro signed a waiver of rights. He answered several questions, but
once Drug Enforcement Agency (“DEA”) agents joined in the questioning, he
invoked his right to counsel. That invocation ended the questioning. Later
that day, Chaparro asked to see Agent Talavera in order to talk further with
him. Chaparro signed a second waiver before any further interrogation. Both
Agent Talavera and Chaparro testified at trial, giving different accounts as to
what was said during the interrogations.
      Chaparro was found guilty of aiding and abetting the importation of 50
to 100 kilograms of marijuana. The district court sentenced him to three years
of imprisonment and three years of supervised release. On appeal, Chaparro
challenges three evidentiary rulings: the admission of Chaparro’s confession,
the exclusion of foreign depositions, and the exclusion of testimony by his
expert. Chaparro also argues that prosecutorial misconduct merits reversal.


                                 DISCUSSION
I.    Chaparro’s motion to suppress his confession
      When analyzing a district court’s denial of a motion to suppress, we
review factual findings for clear error; we review de novo the legal conclusion
that a confession was voluntary. United States v. Escamilla, 852 F.3d 474, 480
(5th Cir. 2017). “We view the evidence in the light most favorable to the
prevailing party,” here, the Government. Id. The Government must prove
voluntariness by a preponderance of the evidence. United States v. Reynolds,
367 F.3d 294, 297–98 (5th Cir. 2004). “The voluntariness of a confession
depends on whether, under the totality of the circumstances, the statement is
the product of the accused’s free and rational choice.” Id. at 298.
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      Before trial, Chaparro moved to suppress Agent Talavera’s account of
their second conversation. He also requested an evidentiary hearing. During
the pretrial conference, the district court concluded that Chaparro incorrectly
styled his motion to suppress as a motion in limine and was untimely in filing
it. The district court also concluded that it was undisputed that Chaparro
signed a second waiver before the second interrogation. The district court
denied the motion to suppress.
      Chaparro argues that the district court erred in finding his motion
untimely and in failing to hold an evidentiary hearing to determine whether
his confession was voluntary. We “may affirm the district court’s ruling for
any reason supported by the record.” Escamilla, 852 F.3d at 480. It thus is
not necessary to analyze timeliness. We will consider only the merits of the
motion to suppress along with the denial of an evidentiary hearing.
      A district court must determine outside the jury’s presence that a
confession was voluntary before it may be presented to jurors. Jackson v.
Denno, 378 U.S. 368, 377, 395 (1964). A defendant may request an evidentiary
hearing on the issue of voluntariness by moving to suppress the confession.
The court will be required to hold an evidentiary hearing if the motion or
affidavits supporting the motion allege “sufficient facts which, if proven, would
justify relief.” United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983).
The alleged facts must be “sufficiently definite, specific, detailed, and
nonconjectural.”   Id.    Even without a motion, “when the evidence clearly
reflects a question of the voluntariness of a confession, the trial court must
raise the issue on its own motion.” United States v. Guanespen-Portillo, 514
F.3d 393, 402 (5th Cir. 2008). We review a denial of an evidentiary hearing for
abuse of discretion. Harrelson, 705 F.2d at 737.
      We first consider Chaparro’s motion. It was brief, made no assertions of
facts at all, and argued simply that the court had to exclude confessions that
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violated Miranda v. Arizona, 384 U.S. 436 (1966). Because the motion made
no factual allegations and attached no affidavit or other form of evidence, it
was insufficient to warrant an evidentiary hearing.
      As to whether the evidence before the district court clearly reflected a
question of the voluntariness of Chaparro’s confession, the record reveals that
the pretrial conference was the first time the district court was presented with
arguments about voluntariness. Chaparro’s counsel orally argued the motion
but presented no evidence.     Evidence, not mere allegations, must clearly
present a question of voluntariness. Guanespen-Portillo, 514 F.3d at 402. No
evidence at the pretrial conference raised a question of voluntariness because
there was no evidence. Counsel’s statements do not substitute. United States
v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 1997).
      We now examine the evidence presented at trial.          Agent Talavera
testified about his first conversation. He handed Chaparro a written form of
Chaparro’s Miranda rights. Chaparro read it and did not have any questions.
Agent Talavera then asked Chaparro if he was willing to talk to him. Chaparro
said he was and signed a waiver of rights.         Agent Talavera then asked
Chaparro questions about how he entered the United States.
      According to Agent Talavera, Chaparro told him that he had separated
from two other people who had left him once he crossed the border. A cousin
recruited him to bring a backpack of marijuana into the United States. If he
successfully imported the marijuana, Chaparro said he was promised a job in
oil fields near Odessa, Texas. He could not afford to pay someone to get him
over the border without having to carry drugs, so this was his only option to
enter the United States.
      Chaparro also told Agent Talavera that, initially, 10 people had set out
to cross the border. They later separated into smaller groups that crossed in
staggered patterns to avoid capture. They planned to meet at some point to
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                                 No. 18-50941
drop off the marijuana in an area near Interstate 10, around the location where
Chaparro was seized by the Border Patrol. Once they became aware of Border
Patrol agents, they scattered.
      Chaparro also added details about drug operations in Mexico. He told
Agent Talavera that he had secretly filmed a plane of narcotics landing in the
Mexican city of Coyame. He said if the Border Patrol could find his bag that
he dropped containing water and his cell phone, then they would find the video.
This bag was never recovered.
      At some point, the first conversation ended, and DEA agents arrived to
question Chaparro about the marijuana. Chaparro refused to speak with those
agents. Agent Talavera and the DEA agents then stopped all questioning. The
DEA agents left, and Agent Talavera went back to his office in the same facility
in which Chaparro was held.
      Agent Talavera also testified as to the second interrogation, stating that
later that same day, Chaparro told another agent that he wanted to talk again
with Agent Talavera. Agent Talavera asked Chaparro, “What’s going on?”
Chaparro responded, “I want to talk to you some more.” Agent Talavera then
typed an addendum in both English and Spanish that acknowledged that
Chaparro “had invoked [his] right to request an attorney” with the DEA, but
that he “agree[d] to speak with Border Patrol without the presence of a lawyer.”
Chaparro signed the addendum. In recounting what Chaparro said, Agent
Talavera did not clearly differentiate between the first and the second
interrogations.
      Chaparro also gave his own account of both interrogations. As to the
first, Chaparro testified that he agreed to speak with Agent Talavera, but that
he told him only about what happened in Mexico. As to the second, he testified
that when Agent Talavera returned, he gave Chaparro the new waiver of
rights. Chaparro insisted he said nothing to Agent Talavera after signing the
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waiver. Chaparro did not contradict the testimony that Agent Talavera gave
a Miranda warning, that Chaparro signed the first waiver, and that he
initiated the second conversation.     Chaparro admitted that he signed the
second waiver. What Chaparro did dispute was confessing to any actions in
the United States.
      When a defendant disputes having made a confession at all, the focus is
no longer on voluntariness. Guanespan-Portillo, 514 F.3d at 404. We conclude
that nothing in the record raises the specific issue of voluntariness, and
therefore there was no basis to claim error when the district court did not sua
sponte decide to hold a hearing on that question. See id. Instead, jurors were
the ones who needed to decide whether to believe Agent Talavera’s testimony
that Chaparro had confessed at all. See United States v. Williams, 343 F.3d
423, 438 (5th Cir. 2003).
      On appeal, Chaparro says there is a fact question as to who initiated the
second conversation. He then argues that because a detainee who has invoked
the right to counsel cannot later waive that right unless the detainee initiates
further interrogation, the confession should have been suppressed.             See
Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). The problem with that
argument is that there was no evidence or even assertion at the pretrial
conference or at trial to contradict Agent Talavera’s account that Chaparro
initiated the second conversation. That fact remained undisputed until appeal.
It is too late to raise the Edwards issue, as I cannot be raised for the first time
on appeal. Guanespen-Portillo, 514 F.3d at 402. It was not.
      Chaparro also makes a one-sentence argument that Agent Talavera’s
testimony as to the second conversation contradicts a report he wrote about his
interview with Chaparro. The report does not indicate Chaparro and Talavera
spoke twice. Instead, the report contains the core of the factual allegations to
which Chaparro allegedly confessed. The report is better characterized as
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                                 No. 18-50941
incomplete as opposed to contradictory. Regardless, the district court was not
put on notice of a question of voluntariness.
       The district court did not abuse its discretion by not holding an
evidentiary hearing.


II.    Chaparro’s motion for foreign depositions
       According to the Federal Rules of Criminal Procedure, “[a] party may
move that a prospective witness be deposed in order to preserve testimony for
trial. The court may grant the motion because of exceptional circumstances
and in the interest of justice.” FED. R. CRIM. P. 15(a). Circumstances may be
sufficiently exceptional when a witness cannot be served, is unlikely to return
to the United States, and the prospective testimony is material to the moving
party’s case. United States v. Dillman, 15 F.3d 384, 389 (5th Cir. 1994).
       Chaparro sought to depose members of his family who would testify that
he borrowed money from them to pay someone to guide him to the United
States illegally. The district court found that although Chaparro’s family was
probably unavailable, the testimony would not be material. The court denied
the motion. Chaparro argues that this denial was in error because the evidence
was “critical” to his defense. He argues that his family’s testimony would
indicate that he had a motive and means to come to the United States with the
assistance of a smuggler and would not have had to carry the marijuana to
enter the United States.
       In the precedent on which Chaparro principally relies, we reversed a
district court’s refusal to permit a foreign deposition. United States v. Farfan-
Carreon, 935 F.2d 678, 681 (5th Cir. 1991). The defendant, Farfan-Carreon,
was arrested after marijuana was found concealed in his truck.           Farfan-
Carreon, 935 F.2d at 679. He contended that he had no knowledge of the
marijuana. Id. To prove this, he sought to depose the man who gave him the
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truck.     Id.   The man allegedly would say that Farfan-Carreon had no
knowledge of the marijuana when he was given the truck. Id. We held that
the potential testimony bore directly on Farfan-Carreon’s knowledge and was
therefore material. Id. at 680.
         In contrast, Chaparro sought depositions to bolster only one part of his
story, namely, that he asked for and received money from his family. Unlike
Farfan-Carreon, where the defendant alleged a single fact that would
contradict an element of his charged crime and had a single witness who could
testify to it, Chaparro sought deposition testimony that even if true would not
categorically exculpate him.
         Moreover, even if this prospective testimony were material, any error
committed by the district court was harmless. The confession and the accounts
of the Border Patrol agents were sufficient to outweigh any deposition alleging
that Chaparro had received money from his family.              This overwhelming
evidence of guilt makes it highly unlikely that the prospective testimony would
have had any impact on the verdict. See United States v. Bello, 532 F.2d 422,
423 (5th Cir. 1976).


III.     Chaparro’s expert witness
         Chaparro sought to introduce a photogrammetry expert to analyze
photographs taken by a Border Patrol agent of shoeprints found the morning
of February 1, 2018. According to the record, photogrammetry is the analysis
of data extracted from photographs and other images. When Agent Chavez
encountered Chaparro, he compared the soles of Chaparro’s shoes to the
shoeprints in the dirt and determined they were the same. Chaparro’s expert
would testify that Chaparro’s shoes were not the ones that made the prints in
the photograph. The Government argued for excluding the testimony, saying
it first learned of the photogrammetry expert five days before the start of trial.
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No expert report had yet been provided, though defense counsel orally
summarized the testimony.        The district court in its oral ruling seemed
primarily to rely on the late notice of the testimony as a basis for its exclusion,
but the court also apparently accepted the Government’s argument that the
witness was not shown to be an expert in analyzing photographs.
      On appeal, Chaparro makes two arguments challenging the exclusion.
First, he asserts that his constitutional right to present a defense was infringed
by the exclusion of his expert. Second, Chaparro contends that the district
court erred in failing to qualify Chaparro’s expert.
      We see no constitutional issue here.        Chaparro failed to follow the
requirements of Federal Rule of Criminal Procedure 16, which include
providing at request a summary of expert testimony if the Government
complies with a similar defense request, and the Rule also allows exclusion of
evidence that has not been properly disclosed. FED. R. CRIM. P. 16(b)(1)(C),
(d)(2)(C). We have upheld the exclusion of expert testimony for a defendant’s
failure to provide a written summary of the testimony. United States v. Lundy,
676 F.3d 444, 451 (5th Cir. 2012). The district court’s additional determination
that the witness was not shown to be qualified to give expert testimony is an
invocation of the demands of Federal Rule of Evidence 702, which requires
such a determination before allowing testimony of a proposed expert.
      There is much in the briefing about these rules. We will not address the
parties’ arguments because any error by the district court would be harmless.
After Agent Chavez gave his testimony about his perception that the shoeprint
and Chaparro’s shoes matched, jurors were informed of significant problems
with the comparison. On cross-examination, Agent Chavez testified he could
not remember what the shoeprints looked like. Agent Talavera testified he
never looked at Chaparro’s shoes or tried to confirm the prints. Agent Carrillo
testified he never looked at the shoeprints. Thus, the jury heard significant
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                                   No. 18-50941
evidence about weaknesses in the Government’s shoeprint-identification
theory.
        Even more importantly, Chaparro undoubtedly had been walking either
by himself or with others in this remote area near the border. He confessed to
his purpose. Regardless of whether the discovered shoeprint was from his
shoes or someone else’s, he was in that general location. Consequently, this
overwhelming evidence of guilt makes it highly unlikely that the exclusion of
the expert’s testimony would have had any impact on the guilty verdict. Bello,
532 F.2d at 423.


IV.     Prosecutorial misconduct
        Chaparro argues that the prosecutor at trial made prejudicial comments
in a cross-examination and in closing argument. Because Chaparro did not
object to the prosecutor’s statements at trial, we review for plain error. United
States v. Aguilar, 645 F.3d 319, 323 (5th Cir. 2011).
        On cross-examination, the prosecutor asked Chaparro if Agent Talavera
“had made up all that stuff you heard about yesterday.”           That was error
because a prosecutor is not to question a defendant about another witness’s
veracity.   See Williams, 343 F.3d at 437.        To reverse for plain error, the
comment must have “affected the substantial rights of the defendant.” Id. Our
analysis considers “(1) the magnitude of the prejudicial effect of the
prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the
judge, and (3) the strength of the evidence supporting the conviction.” Id.
        First, the magnitude of the remark is small. The prosecutor’s cross-
examination had led Chaparro to contradict directly the testimony of Agent
Talavera. Chaparro had already implicitly called the agent a liar. We have
previously held that the prejudicial effect of a remark like this is small. Id.
Second, the district court correctly instructed jurors that questions of
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credibility were theirs to decide. See Williams, 343 F.3d at 438. Third, the
evidence against Chaparro was strong. We conclude that the prosecutor’s
remark did not impact Chaparro’s substantial rights.
      Chaparro also challenges a question and two fact statements made by
the prosecutor in closing arguments.          After the prosecutor recounted
Chaparro’s side of the story, he rhetorically asked: “Does that story make any
sense, ladies and gentlemen?” Chaparro contends the question amounts to a
suggestion that Chaparro’s story was a “government conspiracy.”              The
prosecution is not allowed to make such claims. United States v. Gracia, 522
F.3d 597, 602 (5th Cir. 2008).     A prosecutor, though, is allowed to argue
“inferences and conclusions she wishes the jury to draw from the evidence so
long as those inferences are grounded upon evidence.” United States v. Munoz,
150 F.3d 401, 414–15 (5th Cir. 1998). In this case, the prosecutor recounted
the story that Chaparro himself told and asked jurors to decide if it was
believable. We see no similarity between those statements and a prosecutor’s
assertion that “in order to find appellants not guilty, the jury would have to
believe that several governmental agencies and even perhaps federal judges
had engaged in a malevolent and illegal conspiracy to convict them.” United
States v. Goff, 847 F.2d 149, 164 (5th Cir. 1988).
      Chaparro also challenges two fact statements made by the prosecutor.
First, the prosecutor said, “There is no evidence that there is any surveillance
video.” Second, the prosecutor argued that one of the photos of Chaparro
showed markings that looked like they were from a backpack. Chaparro says
that both comments were improper because they were not based on facts
admitted into evidence. United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.
2008).
      Indeed, there was no surveillance video taken the night of February 1,
2018, in the record.     The witness to whom Chaparro points concerning
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surveillance video had suggested only that surveillance video could be taken
by the thermal imaging device.        The witness did not suggest that the
Government had such video or deleted it.            In post-trial hearings, the
Government stated that these videos are deleted by Border Patrol no later than
one week after being recorded. At trial, though, there was no evidence of
surveillance video.    Moreover, the photos could have shown backpack
markings. It was up to the jury to decide, but it is not error for a prosecutor to
highlight evidence and suggest the inferences and conclusions she wishes the
jury to draw from that evidence.        Munoz, 150 F.3d at 414–15.          These
statements and the question were not improper.
      AFFIRMED.




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