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

                                                 FILED
                                                                          October 13, 2009

                                       No. 08-50775                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

CHRISTIAN M. JIMENEZ-MONTOYA

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                          for the Eastern District of Texas
                                 3:07-CR-2909-ALL


Before KING, DAVIS and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Christian Jimenez-Montoya (“Jimenez”) appeals his conviction under 21
U.S.C. §§ 841, 952, and 960 for importing marijuana and possessing with intent
to distribute marijuana. Jimenez challenges the district court’s refusal to allow
the defendant to call the government’s case agent as a witness and the exclusion
of testimony by the defendant’s sister. For the following reasons, 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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-50775



                                        I. FACTS
           In October 2007, Jimenez was stopped at an El Paso border checkpoint
while driving a truck into the United States. Appearing nervous, Jimenez
declared a six-pack of beer. He told the agent at the checkpoint that the truck
belonged to a cousin and that he had been visiting a sick grandmother in Mexico.
The agent noticed that the tools to lower and raise the truck’s spare tire were
loose in the bed of the truck. Border agents searched the truck and found more
than 50 pounds of marijuana hidden inside the spare tire.
       At trial, Jimenez testified that the truck did not belong to a cousin, but to
Octavio Carrera, the ex-boyfriend of Jimenez’s sister and father of her children.
Jimenez testified that Carrera asked him to drive the truck into the U.S.
Jimenez also testified that he was unaware of the marijuana in the truck.
       The government listed as a possible witness their case agent,Special Agent
Duane Carter, an agent of the Immigration and Customs Enforcement Agency
(“ICE”). When the defendant sought to call Agent Carter as a possible witness
in his case, the government objected, saying that Agent Carter was precluded
from testifying because the defense did not comply with the Touhy regulations
in 28 C.F.R. § 16.23(c).1 The defense argued that a subpoena was not required
as Agent Carter had been present in court throughout the trial and was sitting
at the government counsel table. The district court sustained the objection,
citing United States v. Wallace, 32 F.3d 921 (5th Cir. 1994), which upheld a




       1
         28 C.F.R. § 16.23(c) requires that those seeking testimony from a Department of
Justice employee, where the United States is a party, first submit an affidavit “setting forth
a summary of the testimony sought.” Agent Carter, however, was an employee of the
Department of Homeland Security, which has its own set of Touhy regulations. See 6 C.F.R.
§§ 5.41-5.49. (In part, providing a procedure which must be followed to subpoena DHS
employees and prohibiting those employees from testifying without department approval).

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district court’s decision to quash a subpoena seeking testimony from federal
agents when the defense failed to comply with Touhy regulations.
      Jimenez sought to establish with Agent Carter’s testimony that Carrera
(the owner of the truck) was cooperating with the government, thus bolstering
Jimenez’s defense that others set him up as an alternative ground for refusing
to allow the agent to testify. The district court found that the agent’s testimony
was irrelevant to Jimenez’s actual defense that he did not know the marijuana
was in the truck.     Jimenez said he intended to ask Agent Carter about
inconsistent statements Carrera made to law enforcement agents regarding
Jimenez’s participation in transporting the marijuana. But because Carrera
had not testified, the district court concluded he could not be impeached, and
did not allow the testimony. Jimenez also asserted that he wanted to establish
through Agent Carter’s testimony that the agent had improperly contacted
Jimenez post-indictment, apparently for the purpose of obtaining contact
information regarding potential witnesses, including Jimenez’s mother. The
district court ruled that the agent’s conduct was not an issue for the jury and
was not relevant. Jimenez also wanted to question Carter about whether any
photographs of the six-pack of beer existed which had not been produced. The
district court ruled that Jimenez had no good faith reason to question whether
the government failed to turn over evidence pursuant to a discovery order.
      The district court also excluded testimony from Jimenez’s sister, Melissa
Jimenez. The defendant wanted to elicit testimony from his sister that she
received a threatening phone call the night of her brother’s arrest, and that
later, Carrera’s brother apologized for the threats. The district court found the
testimony inadmissible hearsay.
      Jimenez appeals.




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                            II. STANDARD OF REVIEW
       A district court’s decision to admit evidence is reviewed under an abuse of
discretion standard. United States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008).
A trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence. Id. (internal
quotation marks and citation omitted).
                                      III. ANALYSIS
       We are presented with two issues. First, did the district court commit
reversible error by preventing Agent Carter from testifying? Second, did the
district court abuse its discretion in finding inadmissible the testimony of both
Agent Carter and Melissa Jimenez.
       The district court did not commit reversible error by not allowing Agent
Carter to testify. While the defense counsel proffered several facts it hoped to
establish from Agent Carter’s testimony, none of the facts proffered were
probative to Jimenez’s defense that he was unaware that the marijuana was in
the truck.     At best, Agent Carter’s testimony might have established that
Carrera knew of the marijuana.              Establishing Carrera’s knowledge of the
marijuana, however, has no bearing on whether Jimenez himself was aware of
the marijuana. Because Agent Carter’s testimony was not relevant to Jimenez’s
defense, the district court did not abuse its discretion in finding all of Agent
Carter’s testimony inadmissible.2


       2
          The district court also based its exclusion of Agent Carter’s testimony in part on
Jimenez’s failure to comply with Touhy regulations. See United States ex. rel. Touhy v. Ragen,
340 U.S. 462, 468 (1951). Because Agent Carter is an agent for ICE, an agency within the
Department of Homeland Security, the defense was required to comply with 6 C.F.R. §§ 5.41-
5.49. Sec. 5.45(a) requires that a party seeking the testimony of a Homeland Security
employee about information the employee acquired as part of his or her official duties, must
“set forth in writing, and with as much specificity as possible, the nature and relevance of the
official information sought” to the Office of the General Counsel. It is not disputed that
Jimenez did not set forth in writing the information he was seeking from Agent Carter. While
this court has previously held that compliance with a Touhy regulation is “mandatory” (see
United State v. Wallace, 32 F.3d 921 (5th Cir. 1994), given that Agent Carter’s testimony was

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       Jimenez also appeals the district court’s exclusion of Melissa Jimenez’s
testimony that she received a threatening phone call after Jimenez was arrested
and later an apology from Carrera’s brother for that phone call. Regardless of
whether the alleged phone call was hearsay, that Melissa Jimenez received a
threatening phone call from Carrera’s brother is irrelevant to Jimenez’s defense.
The alleged phone call may allow an inference to be made about the state of
mind of the threatener, but it sheds no light on Jimenez’s state of mind or
knowledge of the presence of drugs in the vehicle at the time he drove to the
border checkpoint. The most reasonable inference we can draw from the alleged
threat is that the caller did not want to be implicated in the drug trafficking
operation. Proof of the threat would not help Jimenez establish that he was “set
up” by Carrera or others, or that he had no knowledge that the marijuana was
in the vehicle. Because Melissa Jimenez’s testimony is not relevant to Jimenez’s
defense, the district court did not abuse its discretion in excluding testimony
about the phone call and apology.


                                  IV. CONCLUSION
       For these reasons, we AFFIRM the district court’s judgment.




not relevant, we need not need reach the issue of whether the failure to comply with 6 C.F.R.
§ 5.45(a) is mandatory in this case.

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