     Case: 18-31294      Document: 00515363860         Page: 1    Date Filed: 03/30/2020




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


                                      No. 18-31294
                                                                                FILED
                                                                           March 30, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

VICTOR ZELAYA-FUNEZ, also known as Victor Funes,
also known as Vic F. Funes, also known as Victor.Funes3,

              Defendant - Appellant



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:17-CR-90-1


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Victor Zelaya-Funez appeals his convictions for sexual exploitation of a
minor and for possession of child pornography, seeking retrial because
statements from plea discussions were used against him at trial.                         Zelaya
contends that he did not understand an English-language provision waiving
his right to exclude those statements, even though he discussed the waiver
provision in Spanish with his attorney and then indicated his consent to the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31294
waiver by signature. The district court, however, found that Zelaya knowingly
waived his right. We agree and AFFIRM.
                               BACKGROUND
      In June 2016, Zelaya downloaded sexually explicit images of the fifteen-
year-old daughter of his girlfriend. After viewing them multiple times over the
course of several weeks, he messaged the girl, repeatedly requesting that she
send him pictures and video of herself. She refused. Zelaya then promised
favors if she complied and threatened to tell her parents if she refused again.
About this time, the girl’s mother happened to borrow her device.             She
discovered Zelaya’s messages and alerted the police.
      The government charged Zelaya with sexual exploitation of a minor in
violation of 18 U.S.C. § 2251(a), (e) and with possession of child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B). The court appointed counsel for
Zelaya, but he then retained Ivan Alberto Orihuela to replace that counsel.
      A few months later, the government proposed a plea agreement.
According to the proposal, Zelaya would plead guilty to the sexual-exploitation
count, and, in exchange, the government would dismiss the child-pornography
count, as well as a separate indictment for illegal re-entry by a removed alien.
The plea agreement would include a stipulated factual basis and would provide
that this factual basis, with the rest of the plea agreement, would be admissible
should Zelaya not plead guilty.
      The agreement was written in English, and Zelaya, who is Honduran,
reads and speaks only Spanish.       Orihuela, however, speaks Spanish, too,
having grown up in a Spanish-speaking Puerto Rican family. He represents a
clientele that is “about 99 percent . . . Spanish-speaking . . . from various
different countries,” and, in his twenty-four years of experience, he has
translated thousands of documents from English to Spanish for clients.
Orihuela went through the plea agreement page by page with Zelaya,
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                                  No. 18-31294
describing in Spanish what each provision meant, and Zelaya signed the
agreement, promising to plead guilty at re-arraignment.
      At the start of re-arraignment, though, Orihuela informed the court that
Zelaya had decided to plead not guilty instead.          In response, government
counsel advised the court that he intended to introduce the plea agreement,
including its factual basis, as evidence at trial. An official court interpreter
translated government counsel’s statements, and all statements at the
hearing, into Spanish for Zelaya. The court authenticated the signatures on
the plea agreement and then reiterated to Zelaya that the government
intended to try to use the plea agreement at trial. The court asked Zelaya
whether he understood this and whether he had any questions; Zelaya stated
that he understood and that he had no questions.
      Thereafter, the government filed its promised motion for a pre-trial
ruling on the admissibility of the plea agreement. Zelaya opposed the motion,
relying on Federal Rules of Evidence, Rule 410, which prohibits admission of
“a statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty plea.” The
government noted that Zelaya’s signed plea agreement stated that he
“expressly and voluntarily waive[d] the protection afforded by Fed. R. Evid.
410” and that he “fully underst[oo]d the agreement.”            Zelaya, however,
maintained that he did not waive Rule 410 knowingly because he could not
read or understand English, the language of the plea agreement and its Rule
410 waiver.
      The district court held two hearings on this matter. In the first, it
determined that (1) “the plea agreement was breached,” (2) “the signatures
appearing on the plea agreement . . . were properly authenticated on the
record,”   (3) “the   plea   agreement   clearly   and    unambiguously     waives
Defendant’s rights,” and (4) “the burden of proof regarding the admissibility of
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                                        No. 18-31294
the plea agreement at trial has been shifted to Defendant to demonstrate that
he entered into the agreement involuntarily and without sufficient knowledge
of its contents.”
      In the second hearing, Zelaya sought to demonstrate lack of sufficient
knowledge. 1 He testified that Orihuela read the plea agreement to him, but
that he knew, not what the document contained, but only what Orihuela told
him it contained. Zelaya testified further that he did not remember whether
he was told that the plea agreement included a factual basis, but that he
remembered that at least some of the facts were read to him. According to his
testimony, he remembered clearly that Orihuela did not mention that the
stipulated facts would be used against him in court. Instead, he testified,
Orihuela told him that, if he did not want the agreement, he could “tear it up
and throw it out.”         He was “sure that I wasn’t told anything” about the
document being used as evidence against him.
      On cross-examination, Zelaya stated that he “didn’t have any trouble
understanding what [Orihuela] was saying, but I didn’t know if what he was
saying was what was written in the paper.” On the other hand, he confirmed
that he continued to speak with Orihuela in court, even though certified
interpreters were available. Zelaya testified that Orihuela translated each
page of the document, discussing it in Spanish. When asked, though, whether
the provision certifying that he had discussed the agreement with his
attorney—a provision interpreted for him at that moment by a court
interpreter—had been translated for him by Orihuela, Zelaya answered,
“Supposedly everything that was there he translated for me, but I don’t know
because, like I told you before, I don’t know how to read the English.” When
pressed, Zelaya stated, “I remember everything -- I remember that he was


      1   The district court appointed conflict counsel for this hearing.
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                                  No. 18-31294
reading everything in the document. But I don’t know if he was telling me the
truth because I cannot read the document in English.” When pressed again,
he answered likewise. When asked whether he recalled hearing the words just
translated for him having been translated by Orihuela, Zelaya answered,
“Some things I remember, but I don’t remember everything.”
      Orihuela took the stand next. He testified that he went through the plea
agreement “page by page and line by line with Mr. Zelaya.” He testified further
that, for some legal terms that he thought might be difficult to translate or
difficult for Zelaya to understand, he “would try to explain it in more of
layperson’s terms.” He maintained that, while he translated, he “had every
indication that [Zelaya] understood what I was translating for him” and that
“he seemed to be following along with me.” Of central importance, Orihuela
testified that he interpreted the “Consequences of Breach” section and that he
gave particular attention to explaining that “if [Zelaya] were to decide not to
plead guilty . . . that there was a potential that this plea agreement could be
used against him in court.”
      The court deemed Orihuela’s testimony credible and Zelaya’s unclear,
equivocal, and evasive. Consequently, finding that Zelaya waived his Rule 410
protection knowingly and voluntarily, the court ruled that the plea agreement
was admissible evidence. At trial, the government introduced a redacted copy
of the plea agreement and read some of its factual basis to the jury. 2 At the
conclusion of trial, the jury found Zelaya guilty of both sexual exploitation of a
minor and possession of child pornography. The court sentenced him to 185
months in prison, a downward departure from the Sentencing Guidelines
recommendation. Zelaya timely appealed, contending that the court erred in



      2 Before trial, the court granted Orihuela’s motion to withdraw as counsel and
appointed new counsel to represent Zelaya.
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                                   No. 18-31294
finding that he knowingly waived his right to keep the plea agreement
inadmissible at trial.
                           STANDARD OF REVIEW
      A district court’s admission of plea statements as evidence, “if objected
to, is reviewed for abuse of discretion.” United States v. Nelson, 732 F.3d 504,
516 (5th Cir. 2013). “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.” United States v. Towns, 718 F.3d 404, 407 (5th Cir. 2013) (quoting
United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011)). In general, “[a]
factual finding is not clearly erroneous if it is plausible in light of the record as
a whole,” United States v. Villafranco-Elizondo, 897 F.3d 635, 640 (5th Cir.
2018) (quoting United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008)), and
if an evidentiary ruling is “based on live oral testimony, the clearly erroneous
standard is particularly strong because the judge had the opportunity to
observe the demeanor of the witnesses,” see United States v. Santiago, 410 F.3d
193, 197 (5th Cir. 2005). “We review the evidence in the light most favorable
to the prevailing party, which in this case is the government.” Id.
                                  DISCUSSION
      On appeal, Zelaya admits that Orihuela “translated the Rule 410 waiver
provision,” but he contends that he did not understand Orihuela’s translation.
As proof of this contention, he relies on his sworn testimony at the hearing and
on the facts that Orihuela paraphrased the provision at issue rather than
translating it word for word, that Orihuela’s first language was not Spanish,
that Orihuela learned Spanish from his Puerto Rican family, not Honduran
speakers, and that Orihuela was not a certified translator.
      It is well beyond plausible, though, that Orihuela translated the
Rule 410 waiver in a manner comprehensible to a Honduran-Spanish-speaker.
Orihuela has translated thousands of legal documents into Spanish, and his
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                                       No. 18-31294
large Spanish-speaking clientele hails from different countries. He was alert
to different dialects at the hearing—as he exhibited, for example, by his
testimony that the word rechazar might bear different translations in different
countries. There is no reason to think that this alertness developed only then.
Nothing in the record establishes that Orihuela’s explanation of the Rule 410
waiver—“that if he were to decide not to plead guilty . . . there was a potential
that this plea agreement could be used against him in court”—would be
understood differently by Honduran clients than by any other Spanish-
speaking clients. 3      To be sure, Orihuela’s use of layman’s terms in his
explanation of the provision is weak evidence against the comprehensibility of
his translation.
       In face of an objectively understandable translation, then, it is plausible,
at least, that Zelaya understood the Rule 410 waiver provision. A person who
has heard a comprehensible explanation of a contract provision may be
presumed to have understood that explanation.                  Further, Zelaya gave no
indication of misunderstanding, either during the discussion with Orihuela or
at re-arraignment, when the judge asked him whether he had any questions
about the government’s intention to use his plea agreement against him.
       That leaves only Zelaya’s testimony to establish that he did not
understand Orihuela’s translation.            In that self-serving testimony, Zelaya
repeatedly refused to answer whether Orihuela’s Spanish-language discussion
of particular provisions matched the Spanish-language interpretation of those




       3 This would hold true even if Orihuela had said something like: “By signing this
document, rechazas/rechaza the right to have the plea agreement’s factual basis not used
against you.” Whether rechazar means “to reject or turn down” or “to tear up and throw out”
in the Honduran dialect of Spanish makes no difference when applied to “right” as its direct
object. In the event, although Orihuela testified that he generally uses “rechazar” to
translate “waive your rights” in discussions with clients, he testified that his formulation of
the effect of a breach of contract was that “this plea agreement could be used against him.”
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provisions provided by the certified court interpreter.              He refused on the
ground that he cannot read English—a non sequitur that the court could
plausibly interpret, while also considering Zelaya’s demeanor, as evasive. The
plausibility of this credibility finding is not defeated by Zelaya’s argument on
appeal that the statements of his testimony are logically consistent with the
statements of Orihuela’s testimony, for logical contradiction is not the only sign
or effect of evasion, ambiguity, or equivocality. The court reasonably deemed
Zelaya’s testimony incredible, and, as such, that testimony was no obstacle to
finding that Zelaya knew about the Rule 410 waiver provision.
       In light of the record as a whole, it is indeed plausible that Zelaya knew
of the provision to let the government use the contents of his plea agreement
as evidence if he should not plead guilty. In finding that Zelaya had such
knowledge, therefore, the district court did not clearly err.
                                    CONCLUSION
       The judgment of the district court is AFFIRMED as modified. 4




       4The statute of conviction for count 2, possession of child pornography, is 18 U.S.C.
§ 2252A(a)(5)(B).
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