     Case: 08-41317     Document: 00511067481          Page: 1    Date Filed: 03/31/2010




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

                                                  FILED
                                                                           March 31, 2010
                                     No. 08-41317
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARIO JESUS OBREGON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:07-CR-452-1


Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Mario Jesus Obregon, along with multiple codefendants, was charged in
an indictment with conspiracy to kidnap an individual in foreign commerce,
kidnapping an individual in foreign commerce, and aiding and abetting the use
of a firearm during and in relation to a crime of violence. A jury convicted him
of the charged offenses, and he was sentenced to a total of 312 months of
imprisonment and a five-year term of supervised release. He now seeks to
appeal his conviction.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-41317   Document: 00511067481 Page: 2        Date Filed: 03/31/2010
                                No. 08-41317

      Obregon contends that the evidence was insufficient to establish that he
conspired to kidnap an individual in foreign commerce or that he knowingly and
intentionally kidnapped an individual in foreign commerce. He argues that the
Government did not prove beyond a reasonable doubt that he agreed to have the
victim, Mateo Esquivel Valiente Solis (Solis), restrained or moved unwillingly,
or that he derived any particular benefit from Solis’s detention. He asserts that
the evidence establishes that he merely was present for the events surrounding
the kidnapping and that he did not voluntarily participate in the commission of
the crime.
      Because Obregon moved for a judgment of acquittal under Federal Rule
of Criminal Procedure 29 at the close of the Government’s case, and he renewed
the motion at the close of all the evidence, we consider the evidence presented
in the light most favorable to the Government to determine whether a rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See United States v. Lopez-Moreno, 420 F.3d 420, 437-438
(5th Cir. 2005).     We resolve all reasonable inferences and credibility
determinations in support of the verdict and determine whether the jury made
a rational decision. See United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th
Cir. 2002); United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995).
      To prove an offense of kidnapping pursuant to 18 U.S.C. § 1201, the
Government must establish “(1) the transportation in interstate commerce (2) of
an unconsenting person who is (3) held for ransom or reward or otherwise,
(4) such acts being done knowingly and willfully.” United States v. Barton, 257
F.3d 433, 439 (5th Cir. 2001). A defendant may be punished as a principal if he
aids or abets the commission of an offense, i.e., Obregon may be convicted of
kidnapping if he associated with the criminal venture, purposefully participated
in the crime, and sought by his actions for it to succeed. See United States v.
Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007).



                                       2
   Case: 08-41317    Document: 00511067481 Page: 3         Date Filed: 03/31/2010
                                 No. 08-41317

      To prove a conspiracy to kidnap, the Government must establish that
(1) an agreement existed between two or more people to pursue the offense of
kidnapping, (2) the defendant knew of the agreement, and (3) voluntarily
participated in the conspiracy. 18 U.S.C. §1201(c); United States v. Bankston
603 F.2d 528, 531, 532-33 (5th Cir. 1979). “[A]greement may be inferred from
‘concert of action, [v]oluntary participation may be inferred from a collocation of
circumstances,     and   [k]nowledge    may    be   inferred   from   surrounding
circumstances.’”    United States v. Paul, 142 F.3d 836, 840 (5th Cir. 1998)
(citations omitted). “Typically, the same evidence will support both a conspiracy
and an aiding and abetting conviction.” United States v. Singh, 922 F.2d 1169,
1173 (5th Cir.1991).
      Viewing the evidence in the light most favorable to the Government, and
resolving all reasonable inferences and credibility determinations in support of
the verdict, there is sufficient evidence in the record that Obregon was guilty of
both conspiracy to kidnap and aiding and abetting the commission of the
kidnapping. The record contains evidence that Obregon freely associated with,
and willingly promoted the aims of, a group that confined Solis and intended to
transport him to Mexico. The record specifically supports that Obregon directly
facilitated the objectives of the group by, inter alia, authorizing the detention of
Solis and acting to conceal the group’s activities after Solis was transported
unwillingly. The record also contains evidence that the kidnapping was devised
to punish Solis for perceived transgressions against Obregon and that Obregon
had substantial influence over whether Solis was released or detained. Thus,
the record shows that Obregon voluntarily affiliated himself with a group that
undertook specific actions that Obregon knew would cause Solis’s detention. See
Pando Franco, 503 F.3d at 394; Paul, 142 F.3d at 840.
      Obregon also argues that the evidence was insufficient to sustain his
conviction of using a firearm during and in relation to a crime of violence. He
contends that the Government failed to prove that he committed a crime of

                                         3
   Case: 08-41317    Document: 00511067481 Page: 4        Date Filed: 03/31/2010
                                 No. 08-41317

violence (i.e., either conspiracy to kidnap or kidnapping), and he therefore could
not be convicted of using a firearm in relation to those crimes. He also asserts
that there is no evidence that he at any time possessed a firearm, or that the
weapons present during the kidnapping were used in connection with that crime.
      Pursuant to 18 U.S.C. § 924(c)(1), “any person who, during and in relation
to any crime of violence . . . uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addition to the punishment
provided for such crime of violence,” be sentenced to varying terms of
imprisonment based on the kind of firearm or the nature of its use. Kidnapping
and conspiracy to kidnap are crimes of violence for purposes of the statute. 18
U.S.C. § 924(c); United States v. Phipps, 319 F.3d 177, 183 (5th Cir. 2003).
Under Pinkerton v. United States, 328 U.S. 640 (1946), “a party to a conspiracy
may be held responsible for a substantive offense committed by a coconspirator
in furtherance of a conspiracy, even if that party does not participate in or have
any knowledge of the substantive offense.” United States v. Jensen, 41 F.3d 946,
955-56 (5th Cir.1994) (citation and internal quotation marks omitted). For a
defendant to be convicted of the substantive offenses of a coconspirator under
Pinkerton, the act must have been reasonably foreseeable to the defendant.
United States v. Dean, 59 F.3d 1479, 1489, 1490 n.20 (5th Cir.1995).
      The instant record contains sufficient evidence for a rational trier of fact
to have found beyond a reasonable doubt that Obregon committed an offense
under § 924(c). See Lopez-Moreno, 420 F.3d at 437-438. Although there was no
evidence that Obregon actually handled a firearm or at any time utilized a
firearm, the record demonstrates that Obregon’s co-conspirators used firearms
to facilitate the kidnapping of Solis and that it was reasonably foreseeable to
Obregon that his co-conspirators would use weapons for that purpose. Obregon’s
co-conspirators specifically brandished weapons to restrain and to intimidate
Solis, and the guns were displayed and used in Obregon’s presence. Because
there also was adequate evidence to sustain Obregon’s convictions of kidnapping

                                        4
   Case: 08-41317    Document: 00511067481 Page: 5        Date Filed: 03/31/2010
                                 No. 08-41317

and conspiracy to kidnap (i.e,. crimes of violence), Obregon was permissibly
convicted under § 924(c) for the violations committed by his co-conspirators. See
Jensen, 41 F.3d at 955-56; Dean, 59 F.3d at 1489.
      Obregon further argues that the district court violated the Confrontation
Clause by wrongly interfering with his counsel’s cross-examination of witnesses.
He contends that the court specifically prevented his counsel from questioning
witnesses on subjects that were pertinent to their credibility. He asserts that
the court essentially protected witnesses from impeachment or unfairly limited
his counsel’s ability to ask questions about meaningful matters.
      This court reviews claimed violations of a defendant’s Sixth Amendment
confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2004). If there is no constitutional violation, then this court reviews a district
court’s limitations on cross-examination for an abuse of discretion, which
requires a showing that the limitations were clearly prejudicial. United States
v. Jimenez, 464 F.3d 555, 558-59 (5th Cir. 2006).
      The Confrontation Clause of the Sixth Amendment guarantees a criminal
defendant the opportunity to cross-examine the witnesses against him.
Delaware v. Van Arsdall, 475 U. S. 673, 678 (1986). However, the Confrontation
Clause merely guarantees “an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis
in original). The district court has “wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on . . . cross-examination based
on concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or only marginally
relevant.” Van Arsdall, 475 U.S. at 679. The Confrontation Clause is generally
satisfied when the defendant “has been permitted to expose to the jury the facts
from which jurors, as the sole triers of fact and credibility, could appropriately
draw inferences relating to the reliability of the witness.” United States v.

                                        5
   Case: 08-41317    Document: 00511067481 Page: 6         Date Filed: 03/31/2010
                                 No. 08-41317
Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (internal quotation marks and citation
omitted).
      The record shows that the district court’s intervention did not interfere
with the defense’s cross-examination of witnesses, but instead limited that cross-
examination to germane and appropriate subjects. The district court properly
restricted the extent to which defense counsel was allowed to probe marginally
relevant topics that Obregon only speculates may have enabled him to impeach
witnesses. See Van Arsdall, 475 U.S. at 679. The district court likewise did not
wrongly limit counsel from repetitive cross-examination because any limitations
on counsel’s ability to elicit cumulative testimony did not affect the jury’s ability
to evaluate the credibility of witnesses. See United States v. Davis, 393 F.3d 540,
548 (5th Cir. 2004). The district court also properly limited counsel’s use of
argumentative questions, cf. United States v. Tansley, 986 F.2d 880, 886 (5th
Cir. 1993) (concluding that defendant’s rights were not infringed upon when the
district court imposed limitations after cross-examination became redundant and
argumentative) and permissibly set forth limitations on the subjects on which
parties could question witnesses. Cf. United States v. Martinez, 151 F.3d 384,
389-90 (5th Cir. 1998) (holding that court did not prejudice defendant by limiting
his counsel to pre-established limitations on, inter alia, the scope of cross-
examination). Accordingly, Obregon has not shown that the limitations that the
district court imposed on his counsel’s cross-examination constituted an abuse
of discretion.
      The judgment of the district court is AFFIRMED.




                                         6
