                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS 16, 2007
                                                July
                    FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk


                                       No. 05-41404


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

GUADALUPE VASQUEZ; DAVID VASQUEZ, Jr.,
also known as David Vasquez,

                                                  Defendants-Appellants



                  Appeals from the United States District Court
                       for the Southern District of Texas
                                  (04-CR-369)


Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
       Defendants-Appellants David Vasquez, Jr. (“David”) and Guadalupe
Vasquez (“Guadalupe”), collectively “the Vasquez brothers” or “the defendants,”
were convicted by a jury of (1) conspiracy to commit mail fraud and to commit
extortion under color of official right, (2) aiding and abetting mail fraud, and (3)
aiding and abetting extortion under color of official right. David was also
convicted of three counts of violating the Travel Act to promote state bribery.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41404

They challenge their convictions on the grounds that (1) the record on appeal is
incomplete, and (2) the admission of the recorded conversations between an
alleged unindicted co-conspirator and an undercover agent violated their Sixth
Amendment confrontation rights. We affirm.
                          I. Facts and Proceedings
      David was the superintendent of schools for Santa Rosa Independent
School District (“S.R. ISD”), and Guadalupe was a member of the S.R. ISD board.
Daniel Rodriguez worked as a frontman at Conceptual Reality, Inc., (“CRI”), an
architectural firm, that had entered into illegal contracts with the schools.
      As part of an investigation of corruption in the awarding of municipal
contracts in the Rio Grande Valley, Special Agent Ozvaldo Alaniz (“Agent
Alaniz”), working undercover, became acquainted with Rodriguez. Agent Alaniz
represented himself to be a vendor of school supplies and furniture. Rodriguez
introduced Agent Alaniz to city, school, and other elected officials in the Rio
Grande Valley, including the defendants. Rodriguez told Agent Alaniz that he
had payed bribes to local officials to convince them to award contracts to CRI.
Specifically, Rodriguez indicated that he had bribed the Vasquez brothers in the
past, giving them cash and paying for vacations.
      Through Rodriguez, Agent Alaniz attempted to enter into a contract with
S.R. ISD. David informed Agent Alaniz that the only supplies the schools
needed were tires. Agent Alaniz asked if there were any personal items that
David needed; David indicated that he needed new tires for his truck. Agent
Alaniz delivered the tires to the school district, but David had already purchased
his own tires. David agreed with Agent Alaniz that Guadalupe should receive
the tires. In the end, Agent Alaniz purchased tires for Guadalupe’s daughter
and son-in-law.
      Rodriguez purchased airline tickets to Las Vegas and paid for meals and
a hotel room in Las Vegas for the defendants. David told federal officers that he


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believed that Rodriguez had paid for the trip to thank David for helping
Rodriguez obtain a school contract. David further admitted asking Rodriguez
to pay for another brother, Danny Vasquez, to fly to Washington, D.C. David
also acknowledged that Al Cardenas, who had been pursuing a large
construction contract with the school district, obtained a female escort service
for David. And, the construction contract was awarded to Cardenas.
      The Vasquez brothers were convicted by a jury on the above named counts.
David also was convicted of violating the Travel Act to promote state bribery.
David was sentenced to a 48-month term of imprisonment to be followed by a
three-year term of supervised release. He was ordered to pay a $75,000 fine and
a special assessment fee. Guadalupe was sentenced to a 54-month term of
imprisonment to be followed by a three-year term of supervised release. He was
ordered to pay a $60,000 fine and a special assessment fee. The defendants
timely filed a notice of appeal.
      We extended the briefing deadline at the request of the defendants’
appellate counsel, who had not represented them at trial, based on her report
that there were large portions of the record missing and that the transcript of
the trial was incomplete. Missing from the record were thirty-two recordings,
including the conversations recorded by Agent Alaniz that were admitted at
trial, as well as government exhibits. Appellate counsel had contacted the Clerk
of Court for the Southern District of Texas, but the clerk had neither any record
of the exhibits introduced at trial by the government nor any transcripts of the
tape recordings admitted at trial. In her brief, counsel asserted that the gaps in
the record require that the defendants’ convictions be reversed and a new trial
granted. After the defendants’ brief was filed, however, the tape recordings were
sent to us by the district court.     In addition, the government submitted
transcripts of excerpts of those tape recordings when it filed its brief. Thus, the
record before us, to which counsel had access, is now complete. Although we


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allowed the defendants’ counsel time to file a supplemental brief, she has failed
to do so.
                                   II. Law and Analysis
A.     Right to a Complete Record on Appeal
       “[A] criminal defendant has a right to a record on appeal which includes
a complete transcript of the proceedings at trial.”1 Similarly, the Court Reporter
Act requires that a court reporter “shall record[] verbatim by short hand . . . or
any other method . . . all proceedings in criminal cases had in open court.”2
When, as here, “a criminal defendant is represented on appeal by counsel other
than the attorney at trial, the absence of a substantial and significant portion
of the record, even absent any showing of specific prejudice or error, is sufficient
to mandate reversal.”3 Ordinarily in such a case, we remand to the district court
for a determination whether the record can be reconstructed.4 Here, however,
remand is not necessary, as the record before us is now complete.5
B.     Confrontation Clause
       The Vasquez brothers also contend that the admission of Rodriguez’s
statements violated their rights under the Confrontation Clause.                         “The
Confrontation Clause prohibits the admission of an out-of-court testimonial
statement unless the witness is unavailable and the defendant has had a prior



       1
           United States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977) (Selva II).
       2
           28 U.S.C. § 753(b).
       3
           Selva II, 559 F.2d at 1306 (footnote omitted).
       4
        See, e.g., United States v. Taylor, 607 F.2d 153, 155 (5th Cir. 1979); United States v.
Selva, 546 F.2d 1173, 1174-75 (5th Cir. 1977) (Selva I).
       5
         See United States v. McCusker, 936 F.2d 781, 785 and n.4 (5th Cir. 1991) (per curiam)
(finding that none of the record was missing where tape recordings introduced and played at
trial, but not simultaneously transcribed by the court reporter, were included in the record on
appeal).

                                                4
                                            No. 05-41404

opportunity to cross-examine the witness.”6 “This prohibition is ‘irrespective of
whether the statement falls within a firmly rooted hearsay exception or bears
particularized guarantees of trustworthiness.’”7                      “Confrontation Clause
objections that were properly raised at trial are reviewed de novo, subject to
harmless error analysis.”8
          Although the Vasquez brothers objected to the admission of Rodriguez’s
statements on both hearsay (the denial of which has not been appealed) and
Confrontation Clause grounds, the government contends that the Vasquez
brothers have not preserved this objection on appeal, as, it asserts, they did not
state the specific ground of objection, i.e., that Rodriguez’s statements were
testimonial. The government therefore urges us to apply plain error review.
This argument fails. When a criminal defendant objects on Confrontation
Clause grounds, he is implicitly contending that the challenged statement is
testimonial. After all, a statement that is not testimonial cannot violate the




          6
              United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).
          7
          United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007) (citing Crawford v.
Washington, 541 U.S. 36, 59 (2004) and quoting United States v. Holmes, 406 F.3d 337, 348
(5th Cir. 2005)). To the extent the government argues that we have rejected the Vasquez
brothers’ assertion that the fact that a statement is excluded from the hearsay definition by
Rule 801(d)(2)(E) does not dispose of the confrontation clause issue, it is clearly incorrect.
United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005), cited by the government, is not
to the contrary. In Delgado, the court noted that the statements at issue were both non-
testimonial and admissible hearsay. The court did not hold that the statements were non-
testimonial because they were admissible hearsay.
       The government argues at length that the statements at issue fall within Rule
801(d)(2)(E) of the Federal Rules of Evidence. The defendants, however, have not appealed the
denial of their hearsay objections.
          8
              Pryor, 483 F.3d at 312 (quoting United States v. Jiminez, 464 F.3d 555, 558 (5th Cir.
2006)).

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Confrontation Clause.9 Accordingly, we review the defendants’ Confrontation
Clause challenge de novo.
       The Vasquez brothers contend that, because the “jig [was] up” for
Rodriguez by the time the FBI started investigating the Vasquez brothers,
Rodriguez’s statements were testimonial.                There is nothing in the record,
however, to suggest that Rodriguez was aware that his conversations with Agent
Alaniz were being recorded. Instead, it appears that Rodriguez made the
statements at issue unwittingly to an undercover officer. Thus, the statements
are not testimonial and their admission does not violate the Vasquez brothers’
Confrontation Clause rights.10
                                      III. Conclusion
       Finding no error, we AFFIRM.




       9
         Crawford v. Washington, 541 U.S. 36, 59 (2004); Holmes, 406 F.3d at 348 (“Because
the categorical rule adopted in Crawford is triggered only with respect to ‘testimonial’ evidence,
whether a challenged statement falls within the class of evidence deemed ‘testimonial’ will
generally be outcome-determinative.”).
       10
         See Davis v. Washington, __ U.S. __, 126 S. Ct. 2266, 2275 (2006) (citing Bourjaily
v. United States, 483 U.S. 171, 181-184 (1987) and noting that “statements made unwittingly
to a Government informant” were “clearly nontestimonial”).

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