                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0765n.06
                          Filed: December 17, 2008

                             Nos. 06-5427/5432/5433/5480/5483

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                    On appeal from the United States
                                                      District Court for the Middle District
HECTOR SAUL MENDEZ (06-5427);                         of Tennessee
JOSE ALVARADO BORREGO (06-5432);
JOSE BENCOMO-CASTILLO (06-5433);
JOSE BEJARANO HERNANDEZ (06-5480);
JUAN VICTOR PEREZ (06-5483);

       Defendants-Appellants.
                                            /

BEFORE:       GUY, RYAN and McKEAGUE, Circuit Judges.

       RYAN, Circuit Judge.         In this consolidated appeal, the defendants, Hector Saul

Mendez, Jose Alvarado Borrego, Jose Bencomo-Castillo, Jose Bejarano Hernandez, and

Juan Victor Perez, challenge their convictions for conspiring to kidnap three persons, in

violation of 18 U.S.C. § 1201(c); kidnaping three persons, including a minor, in violation of

18 U.S.C. §§ 1201(a)(1) and 1201(g); and brandishing or being principals to the

brandishing of firearms during the kidnaping, in violation of 18 U.S.C. §§ 2 and

924(c)(1)(A)(ii). We will affirm.

                                                I.

       In 2004, Hernandez and Juan Chavez, a local drug dealer, engaged in a series of

drug transactions, whereby Hernandez would arrange a delivery of marijuana and cocaine
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to Chavez through Hernandez’s Mexican contacts. After two major deliveries, Chavez

defaulted on payment and owed the Mexican dealers over one million dollars. Under

pressure from the Mexican suppliers to collect from Chavez, Hernandez conceived a

scheme to kidnap Chavez’s mother, Rosa Chavez, hold her captive, and then demand that

Juan Chavez pay a ransom for her release. Hernandez recruited the other defendants to

help him execute the plan.

        On August 7, 2004, the five defendants traveled from Dalton, Georgia, to Rosa

Chavez’s home in Nashville, Tennessee. Around midnight, Borrego forced open Mrs.

Chavez’s front door and went inside, followed by Bencomo-Castillo, Mendez, and Perez

openly displaying firearms. The defendants abducted the three occupants of the home,

Rosa Chavez, Eloy Florez (Rosa’s boyfriend), and Estephany Marquez (Juan Chavez’s

fourteen year old niece), at gunpoint, eventually driving them to a Super 8 Motel in Dalton,

Georgia, and holding them as hostages.

        On August 9, 2004, the police arrested all five kidnapers before any ransom was

paid.

        Following a joint trial at which Hernandez was the only defendant to testify, the jury

found each defendant guilty on all counts. The district court sentenced each defendant to

serve between 324 - 408 months’ imprisonment.

                                              II.

        The defendants argue an array of evidentiary issues. We review a trial court’s

evidentiary rulings for an abuse of discretion. Sommer v. Davis, 317 F.3d 686, 693 (6th

Cir. 2003).

                                              A.
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       First, all the defendants argue that the district court improperly restricted their “right”

to cross-examine Rosa Chavez, a government witness, regarding her earlier involvement

in her son Juan’s drug trafficking. Specifically, the defendants wished to impeach Rosa’s

credibility by introducing into evidence two allegedly conflicting “302 forms,” or summaries

of Rosa’s FBI interviews generated by Agent Brett Curtis, containing statements regarding

her receiving some of her son’s drug proceeds. In one of the statements, a May 2005

interview, Curtis questioned Rosa about events occurring before the kidnaping, and as to

those events, she denied profiting from Juan’s drug sales. Then, in October 2005, Curtis

questioned Rosa about events occurring after the kidnaping, and as to those events, she

admitted “laundering” Juan’s drug money.

       The Confrontation Clause of the Sixth Amendment of the Constitution assures

defendants the right to confront the witnesses against them, but the right is not absolute.

See Delaware v. Van Arsdall, 475 U.S. 673, 678-80 (1986). The trial judge retains “wide

latitude” in imposing limits to cross-examination. Id. at 679.

       After allowing defense counsel to question Curtis and Rosa outside the presence

of the jury, the district court correctly determined that Rosa’s statements to Curtis in the

302 forms were not inconsistent, one with the other, because Rosa’s statements as

recorded in the 302 forms concerned her activity at two different times. Moreover, the

district court properly excluded the 302 forms because they consisted of extrinsic evidence

of matters collateral to the defendants’ kidnaping cases, which rendered them inadmissible

under Fed. R. Evid. 608(b). The court allowed unrestricted cross-examination of Rosa

concerning her knowledge of the kidnaping events and the defendants were allowed to

attempt to impeach Rosa’s credibility by inquiring whether she knew that Juan’s money
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was being derived from drug trafficking; she responded, “Yes.” She admitted that she

benefitted from her son’s drug money, which, according to the defendants, was the “crux

of the argument.” For these reasons, we conclude the district court did not abuse its

discretion in limiting Rosa’s cross-examination.

                                             B.

       The crux of Mendez’s defense was that he was compelled, under duress, to

participate in the kidnaping. He now claims that the district court abused its discretion by

restricting, on hearsay grounds, the government’s direct examination of Agent Frank O’Neill

concerning Mendez’s post-arrest statements. Mendez argues that Mendez’s statements,

had the court not excluded them, would have established his then existing state of mind,

which in turn tended to prove his duress defense, and should have been admitted under

Fed. R. Evid. 803.

       Inadmissible hearsay includes out-of-court statements used in court to prove the

truth of the matter asserted and generally, such statements are inadmissible. Fed. R. Evid.

801, 802. But, under Fed. R. Evid. 803(3), there is an exception for statements that tend

to show, circumstantially, the declarant’s “[t]hen existing mental, emotional, or physical

condition.” In order to be admissible under Rule 803(3), the statement must have been

contemporaneous with the declarant’s experience of the mental, emotional, or physical

condition referred to when the declarant did not have “an opportunity to reflect and possibly

fabricate or misrepresent his thoughts.” United States v. LeMaster, 54 F.3d 1224, 1231

(6th Cir. 1995).

       The district court correctly determined that Mendez’s statements did not qualify

under the Fed. R. Evid. 803(3) exception. Mendez claims that the statements he made to
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O’Neill two days after the kidnaping suggesting that he acted under duress, reflected his

state of mind at the time of the kidnaping. Because Mendez’s statements were not made

contemporaneous with the kidnaping, but two days later, and under police interrogation,

the district court properly excluded the statements as inadmissible hearsay.*

                                             C.

       Finally, Hernandez argues that the district court abused its discretion when it

excluded his proffered evidence that his father had been kidnaped in Mexico, which, he

argues, would have supported his duress defense.

       Hernandez sought to introduce various types of evidence (Hernandez’s testimony

and Hernandez’s father’s and sister’s video-taped depositions) to show that his father had

been kidnaped and held for ransom in Mexico and that, as a result, Hernandez was

“forced” to kidnap Rosa, Eloy, and Estephany in order to get money to pay the ransom

demanded by his father’s kidnappers.

       We conclude the district court properly excluded the proffered evidence because

it was not shown that at the time Hernandez kidnaped his victims, he was aware that his

father had been kidnaped. The result is that the proffered testimony by Hernandez’s father

and sister regarding the father’s kidnaping was irrelevant and inadmissable. See Fed. R.

Evid. 402 and 602.


       *
         There is an old argument some evidence law theorists find enthralling, to the effect
that at common law, in the right circumstances, an out-of-court statement tending to show
the declarant’s then state of mind may be admissible, but not as an “exception” to the
hearsay rule, because such statements are not offered “for the truth of the matter
asserted,” but only to prove that the statement was made, thus illuminating the declarant’s
thinking or “state of mind.” But Fed. R. Evid. 803(3), like the proverbial 800 pound gorilla,
precludes such interesting reasoning, by simply pronouncing then existing state-of-mind
statements to be an exception to the prohibition against hearsay.
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                                                 III.

       Borrego, Bencomo-Castillo, Hernandez, and Perez also argue that the district court

abused its discretion when it refused to declare a mistrial following an alleged Bruton

violation. Bruton v. United States, 391 U.S. 123 (1968).

       We review a district court’s decision not to grant a mistrial for an abuse of discretion.

Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003).

       Bruton holds that in a joint trial, an out-of-court statement by one defendant

incriminating a codefendant is inadmissable as to the codefendant under the Confrontation

Clause of the Sixth Amendment. Bruton, 391 U.S. at 135-36. We have held that “the

introduction of a . . . []defendant’s self-incriminating, extra-judicial statement, in a joint trial,

where the [co]defendant’s name is redacted and a neutral term is substituted,” does not

offend Bruton or the Sixth Amendment. United States v. Vasilakos, 508 F.3d 401, 408 (6th

Cir. 2007). Likewise, there is no violation where a district court provides a proper limiting

instruction to the jury after the confession is redacted to eliminate not only the

codefendant’s name, but any reference to his existence. See Richardson v. Marsh, 481

U.S. 200, 208-09 (1987).

       The defendants claim a Bruton violation occurred during trial when O’Neill recounted

Mendez’s statements during his post-arrest interview, which included several references

to “four other people” and “the five people” involved in the kidnaping.

       O’Neill’s references did not facially incriminate the other codefendants. O’Neill

mentioned no specific names during his testimony, and the district court immediately

provided a limiting instruction to the jury regarding O’Neill’s references to the “others.”

                                                IV.
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      The defendants’ remaining assignments of error are manifestly without merit.

                                         V.

      The district court’s judgment is AFFIRMED.
