                                                                         FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                October 10, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 11-4142
          v.                                              (D. Utah)
 RAUL ALVARADO,                               (D.C. No. 2:10-CR-00157-TS-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.


      Defendant Raul Alvarado appeals his conviction in the United States

District Court for the District of Utah on the charge of encouraging or inducing an

alien to enter or reside in the United States unlawfully. See 8 U.S.C.

§ 1324(a)(1)(A)(iv). A superseding indictment charged Defendant with

encouraging and inducing Marcela Vaca-Mendez to enter and reside in the United

States unlawfully and causing her serious bodily injury during and in relation to


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that offense. See id. § 1324(a)(1)(B)(iii). Ms. Vaca-Mendez’s testimony at trial

included a litany of severe abuse by Defendant. At the close of the government’s

case, however, the district court sua sponte ruled that the bodily injury to

Ms. Vaca-Mendez was not during and in relation to the encouraging-and-inducing

offense, thus removing the bodily-injury issue from the jury’s consideration. The

court denied Defendant’s motion for a mistrial and the jury found Defendant

guilty. On appeal Defendant contends that the district court abused its discretion

by failing to declare a mistrial and subjected him to double jeopardy. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      Defendant was originally indicted by a federal grand jury on one count of

encouraging or inducing an illegal alien to enter or reside in the United States.

See 8 U.S.C. § 1324(a)(1)(A)(iv). But a superseding indictment added an

allegation that “during and [in] relation to [the offense] Defendant caused serious

bodily injury to [Ms. Vaca-Mendez].” Aplt. App., Vol. 3 at 212. The additional

allegation subjected Defendant to a possible enhanced sentence under 8 U.S.C.

§ 1324(a)(1)(B)(iii).

      Ms. Vaca-Mendez testified at trial to her relationship with Defendant. She

met him in 2004 at a party in her hometown in Mexico. They began a romantic

relationship, although his permanent home was in Utah. She became pregnant in

November or December 2004. On January 9, 2005, he told her that they were

                                         -2-
leaving for the United States. She obeyed his command because she wanted her

child to have a father. During their relationship in Mexico he was verbally

abusive, humiliating her. And on three occasions he was physically abusive. On

one occasion he grabbed her by the neck at a party. A second incident was at his

sister’s home, when he threw her on a bed and again grabbed her neck. The third

incident was at a party, when he grabbed her by the hair to make her dance with

him.

       When Defendant and Ms. Vaca-Mendez left for the United States,

Defendant told her that he had called some people to help her cross the border and

that he would pay them. He drove her and several other passengers to the border

town of Nogales where she stayed with one of the other passengers. Eventually

she was driven across the border at Mexicali in a truck. Defendant’s brother

picked her up once she crossed and drove her to Santa Barbara, California, where

she joined Defendant, who drove her to Salt Lake City. During the drive

Defendant was physically abusive. He refused to let her eat or use the bathroom

because he was in a hurry. When they arrived at his home, he told her that she

would have to clean his home the next day. She became fatigued and went to bed,

but he tried to hit her to make her keep working. On a number of occasions, he

beat her while she was in his home. Not long after her arrival she had a

miscarriage. She was told not to have intercourse for several weeks, but

Defendant beat her and forced her to have sex “nine or ten [times],” Aplt. App.,

                                        -3-
Vol. 1 at 38. Defendant did not object to Ms. Vaca-Mendez’s testimony about the

abuse.

         Ms. Vaca-Mendez’s testimony about her entry into the United States was

corroborated by Defendant’s confession. Defendant was interviewed by FBI

agent Nancy Pearson. Although she was proficient in Spanish, she questioned

Defendant through an interpreter, Gregory Knapp, a detective with the Utah

County Sheriff’s office who was fluent in Spanish. Pearson and Knapp both

testified that Defendant told them that he had paid a human trafficker $2,000 to

smuggle Ms. Vaca-Mendez into the United States.

         At the close of the government’s case-in-chief, Defendant moved for a

judgment of acquittal, arguing that the government had failed to produce

sufficient evidence that Defendant paid the person who smuggled Ms. Vaca-

Mendez into this country or that Ms. Vaca-Mendez suffered serious bodily injury.

The district court responded:

         While there is certainly evidence from which the jury could find that
         the defendant encouraged or induced Ms. [Vaca-]Mendez to enter or
         reside in the United States, and there is evidence [from] which the
         jury could find that defendant caused serious[] bodily injury to
         Ms. [Vaca-]Mendez, there is no evidence from which the jury could
         find that the defendant caused serious bodily injury during and in
         relation to the offense of encouraging or inducing an alien to enter or
         reside in the United States.

Id. at 181. It granted the motion for acquittal on the “greater offense of

encouraging or inducing an alien to enter or reside in the United States causing


                                           -4-
bodily injury,” id., Vol. 3 at 283; but it allowed the trial to proceed on the “lesser-

included offense of . . . encouraging or inducing an alien to enter or reside in the

United States,” id. at 283–84.

      Defendant moved for a mistrial, arguing that he had been unfairly

prejudiced by the abuse testimony. But the district court denied the motion.

      Defendant testified that he did not arrange to bring Ms. Vaca-Mendez into

the United States illegally, that he did not discuss her legal status with her, and

that he assumed that she was in the United States legally because she had

previously entered and left the country several times and had been married to a

United States citizen. He said that he did not learn she had come to the United

States until she called him from Santa Barbara and that he and his daughter made

a round-trip drive from Salt Lake City to take her there. He asserted that on the

trip from California to Utah they stopped several times to eat. He also testified

that the law-enforcement officers had misunderstood him during his interview,

because he had not admitted that he had arranged to smuggle Ms. Vaca-Mendez

but had only provided his general knowledge of human smuggling.

      To corroborate his testimony, Defendant called his daughter, who testified

that Defendant and Ms. Vaca-Mendez had a normal relationship, that she had

accompanied them on the trip from California to Utah, and that Ms. Vaca-Mendez

had eaten and used the bathroom on the trip. Defendant also called Ms. Vaca-




                                          -5-
Mendez’s ex-husband to confirm that she had previously lived with him in

California and that he had been a legal resident at the time.

      When the district court submitted the case to the jury, it gave the following

instruction: “You have heard evidence that Defendant allegedly inflicted injuries

upon [Ms. Vaca-Mendez]. You are instructed to disregard all testimony regarding

the infliction of physical injuries upon [her] by Defendant. Do not speculate

about this.” Aplee. Supp. App. at 15. In closing arguments both defense counsel

and the prosecutor told the jury not to consider the abuse testimony. The jury

convicted Defendant of the lesser-included offense and the court sentenced him to

21 months in prison.

II.   DISCUSSION

      A.     Mistrial

      Defendant argues that the district court abused its discretion when it

allowed the trial to proceed on the lesser-included offense. He asserts that “[Ms.]

Vaca-Mendez’s testimony was so pulsating and horrifying that it depicted [him]

as a monster with an insatiable penchant toward cruelty.” Aplt. Br. at 19. He

contends that her testimony was too prejudicial for a jury instruction to have

mitigated its effect on the jury.

      “A trial court may appropriately grant a mistrial only when a defendant’s

right to a fair and impartial trial has been impaired; a decision we review for an

abuse of discretion.” United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir.

                                         -6-
2002). We must consider “(1) whether the prosecutor acted in bad faith, (2)

whether the district court limited the effect of the improper statement[s] through

its instructions to the jury, and (3) whether the improper remark[s] w[ere]

inconsequential in light of the other evidence of the defendant’s guilt.” United

States v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008). In our view, all three

factors support the district court’s denial of the mistrial motions. First, Defendant

does not argue—and the record does not suggest—that the government acted in

bad faith in eliciting the abuse testimony. Indeed, Defendant did not object to the

testimony when it was given, and he had not argued the ground on which the

court decided that the serious-bodily-injury element had not been proved.

      Second, the district court gave the jury an unequivocal instruction to

disregard the abuse testimony. “We presume that jurors will follow clear

instructions to disregard evidence unless there is an ‘overwhelming probability’

that the jury will be unable to follow the court’s instructions, and a strong

likelihood that the effect of the evidence would be ‘devastating’ to the

defendant.” Caballero, 277 F.3d at 1243 (internal quotation marks omitted). In

this case the instruction was bolstered by the government’s actions: not only did

it refrain from relying on the abuse testimony in its closing argument, see United




                                          -7-
States v. Peveto, 881 F.2d 844, 859 (10th Cir. 1989), but it affirmatively told the

jurors to ignore the abuse evidence. 1

      Third, the evidence against Defendant was strong, making the prejudicial

testimony—if not inconsequential—at least significantly less consequential. The

testimony of Ms. Vaca-Mendez was detailed and damning, and two law-

enforcement officers reported that Defendant had admitted that he paid to have

her smuggled into the United States. We conclude that the district court did not

abuse its discretion in denying Defendant a mistrial. See United States v.

Sanders, 928 F.2d 940, 942–43 (10th Cir. 1991) (admission of evidence of four

uncharged offenses did not deprive the defendant of a fair trial when in each




      1
          The government began its closing argument by saying:

             Ladies and gentlemen of the jury, there’s been a question
      that’s been circulating the first two days of this trial, and I’m sure
      you’ve noticed it hasn’t been raised today, and that is the issue as to
      whether or not the defendant, Mr. Alvarado, abused Marcela Vaca-
      Mendez. As the Court has just instructed you, that is not relevant.
      That is not something that I’m going to argue about. That is not
      something that you are even to consider as you deliberate or discuss
      the facts of this case. In fact, the Court has gone so far as to say
      don’t even speculate about it.
             So the government asks you at this point in time to put all
      you’ve heard about that aside and let’s focus on the facts that have
      been presented in support of the crime the defendant has been
      charged with, that is encouraging or inducing Marcela Vaca-Mendez
      to enter or reside in this country unlawfully.

Aplt. App., Vol. 2 at 311.

                                         -8-
instance the evidence was addressed by a limiting instruction or the defendant

failed to object to its admission).

      Defendant’s reliance on Lawrence v. United States, 357 F.2d 434 (10th Cir.

1966) is misplaced. In that case the defendant was convicted of bank robbery.

See id. at 434. One of his codefendants, who had previously pleaded guilty,

“testified that [the defendant] was not involved in the robbery and had no

knowledge of it.” Id. at 435. To impeach the codefendant, the government read a

statement by his attorney at sentencing that put the blame for planning the

robbery on the defendant. See id. The trial court initially admitted the attorney’s

statement, but later ruled it inadmissible. See id. We held that “[t]he contents of

the statement are so damaging to [the defendant] on a crucial issue that it must be

held that the error was not cured by the trial court’s admonition.” Id. at 437

(emphasis added). Our case is different. The abuse testimony was not crucial on

whether Defendant had encouraged or induced Ms. Vaca-Mendez to enter the

United States. Indeed, the district court ordered acquittal on the serious-bodily-

injury element precisely because the alleged abuse was unrelated to the smuggling

offense.

      The other case relied on by Defendant, Maestas v. United States, 341 F.2d

493 (10th Cir. 1965), is more difficult to distinguish. Perhaps it would have been

decided differently under our Lamy framework. Suffice it to say that on the facts

of this case, we see no abuse of discretion by the district court.

                                          -9-
      B.     Double Jeopardy

      Defendant argues that he was subjected to double jeopardy when his trial

proceeded after the district court had ordered his acquittal on the charge in the

superseding indictment. He asserts that the indictment “only sought enhanced

sentencing factors,” Aplt. Br. at 15, and that the addition of the serious-bodily-

injury element did not create a greater offense of which the crime of conviction

was a lesser-included offense. Because there was only one offense, he argues, the

acquittal on the charge in the indictment barred a trial on the offense of

conviction. See United States v. Hunt, 212 F.3d 539, 546 n.4 (10th Cir. 2000)

(when offense can be committed in two ways, acquittal on charge of committing

offense by one means bars later prosecution for committing offense by the other

means).

      Because Defendant failed to raise the double-jeopardy issue below, we

review for plain error. See United States v. Contreras, 108 F.3d 1255, 1261 (10th

Cir. 1997). “We find plain error only when there is (1) error, (2) that is plain, (3)

which affects substantial rights, and (4) which seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Romero,

491 F.3d 1173, 1178 (10th Cir. 2007). The district court’s purported error fails to

meet this standard. The problem is with the second requirement. “An error in a

ruling is ‘plain’ only if the ruling violates ‘well-settled law.’” United States v.

Baum, 555 F.3d 1129, 1135–36 (10th Cir. 2009). “When no authority from the

                                         -10-
Supreme Court or this circuit would compel a determination that there was error

and there is contrary authority in other circuits, the error can rarely be plain.” Id.

Neither the Supreme Court nor this circuit has addressed whether the “injury

factors” in 8 U.S.C. § 1324(a)(1)(B)(iii) and (iv) are “sentencing factors” or

“elements” of a greater-aggravated offense. The only sister circuit to address this

issue held that “[i]t is plain that, following Apprendi [v. New Jersey, 530 U.S. 466

(2000)], the ‘injury factors’ in 8 U.S.C. §§ 1324(a)(1)(B)(iii) and (iv) are

‘elements’ of ‘greater aggravated offenses’ . . . rather than mere ‘sentencing

factors’ . . . .” United States v. Williams, 449 F.3d 635, 644 (5th Cir. 2006).

“Because only one court has addressed this issue and reached a result contrary to

Defendant’s position on appeal, he fails to make the necessary showing . . . .”

United States v. Johnson, 183 F.3d 1175, 1179 (10th Cir. 1999). The only

instance in which “[w]e have recognized plain error despite contrary authority in

other circuits [is] in the context of an unambiguous statutory command.” Baum,

555 F.3d at 1136. Such is not the case here.

III.   CONCLUSION

       We AFFIRM Defendant’s conviction.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                          -11-
