              IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT
                                              _______________

                                                m 00-50482
                                              Summary Calendar
                                              _______________



                                     UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                                    VERSUS


                                        JUAN CARLOS ZACARIAS,

                                                                 Defendant-Appellant.


                                       _________________________

                               Appeal from the United States District Court
                                    for the Western District of Texas
                                           (EP-99-CR-1642-H)
                                     _________________________
                                              June 1, 2001


Before SMITH, BENAVIDES, and DENNIS,                     U.S.C. § 1203. Finding no sentencing error,
  Circuit Judges.                                        and that any error in excluding evidence was
                                                         harmless, we affirm.
JERRY E. SMITH, Circuit Judge:*
                                                                               I.
   Juan Zacarias appeals his conviction of, and             Zacarias was convicted of taking part in the
sentence for, hostage taking in violation of 18          kidnaping of Leonard Mickens. The kidnaping
                                                         occurred when Mickens drove his prospective
                                                         brother-in-law, Mario Sanchez, to a house in
        *
          Pursuant to 5TH CIR. R. 47.5, the court has    Ciudad Juarez, Mexico. Mickens testified that
determined that this opinion should not be published     shortly before midnight, Mario Sanchez asked
and is not precedent except under the limited            his sister, Erica Sanchez, to drive him to
circumstances set forth in 5TH CIR. R. 47.5.4.
Juarez, but Mickens volunteered to drive, be-         told Mickens that he also wanted the title to
cause he thought it was too late for Erica to         Mickens’s Isuzu Rodeo.
make the trip.
                                                         Mickens testified that the next day he, Juan,
   Mickens drove to a house that Sanchez di-          Chuy, and two men with guns went to a
rected him to in Juarez, just across the border       restaurant in Juarez, where they discussed ar-
and not far from the Zaragoza Bridge. Once            rangements for getting the title and money.
there, Mickens waited in his truck while San-         Mickens thought about running away at that
chez engaged in a long conversation with an           point but did not, because of the presence of
unidentified man outside the house. Sanchez           the two men with guns who were “body
and the man then went into the house.                 guarding” him.
Eventually, Mickens became impatient and
went to the house to see whether Sanchez was              Instead, Mickens offered to cross the
ready to leave.                                       border into the United States, get the money
                                                      and title, and return. Unsurprisingly, his
   When he went inside the house, Mickens             captors declined this offer. Instead, they let
saw seven to ten men with guns. He tried to           Mickens place a telephone call from a pay
leave, but the men pushed him back into the           telephone to his friend Rod Redic in El Paso.
house and restrained him with tape.                   Redic testified that he received a call at his
                                                      girlfriend’s house from a person wanting
    Mickens learned later that the men                “$5,000 and title to the truck,” but that he
kidnaped him because Sanchez was involved in          could not understand exactly what this person
illegal drug-trafficking and owed the kidnapers       wanted him to do. Mickens then got on the
$100,000 on a drug debt. Sanchez also was             line and asked Redic to bring $5,000 and the
abducted, and, at the time of trial, his              title to the Rodeo.
whereabouts were unknown.
                                                          Mickens then relayed to Redic instructions
   Mickens testified that men with guns               he received from Juan, telling Redic to take
grabbed him and taped his body and head so            the money and title just over the Zaragoza
that he could not see. They also “pok[ed]”            Bridge onto the Mexican side, where he was
him with guns while he was restrained with            to meet Juan between 5:00 and 5:30 p.m.
tape. Mickens did not testify that Zacarias           Mickens described Juan as a “big, heavy-set,
was present when he was taken hostage. He             black guy.” Mickens then was taken back to
did testify, however, that over an hour later,        the house, where he watched the Olympics on
ZacariasSSwho was referred to as “Juan” and           television. During this time, Chuy departed,
“Juanito,”SSwas present in the house where            leaving only Juan and the two men with guns
Mickens was being held and helped remove              holding Mickens.
the tape from Mickens.
                                                         Meanwhile, Redic collected the title and
   Another man referred to as “Chuy” also             $4,000 from Mickens’s father, who testified
was present. Juan asked Mickens how much              that he gave the money because Redic told him
money he could give them. Mickens replied             that “my son was being held by someone, and
that he could give about $5,000. Juan then            they demanded this money and title for his


                                                  2
release.” Redic then added $1,000 of his own             At trial, Mickens and Redic again identified
money and went across the Zaragoza Bridge,            Zacarias, and Zacarias was convicted of hos-
as instructed.                                        tage taking. At sentencing, and over Zacarias’
                                                      objections, the court applied a six level upward
   Mickens testified that about 5:00 p.m., Juan       adjustment pursuant to U.S.S.G. § 2A4.1-
and one of the men with a gun left the house,         (b)(1), because a ransom demand was made,
presumably to meet Redic. Redic testified that        and a two-level increase pursuant to U.S.S.G.
after he had parked on the Mexican side of the        § 2A4.1(b)(3), because a dangerous weapon
bridge, a vehicle pulled up beside him; the           was used.
driver motioned him to come over. Redic got
into the car in which sat only one man, whom                                 II.
Redic later identified as Zacarias. Redic was            Zacarias argues error as a matter of law in
told that his friend was all right, and he then       the six-level increase for the ransom demand.
handed over the money and title.                      He contends that an upward adjustment can be
                                                      made under § 2A4.1(b)(1) only if a ransom de-
   Mickens testified that the man with the gun        mand is made on the government.
who had gone with Juan returned to the house,
and that the two men took him to the bridge,              We conduct a de novo review of the
where he was released. He saw Redic there             application of the Sentencing Guidelines. See
and walked over and got into Redic’s car,             United States v. Rocha, 916 F.2d 219, 242
whereupon they crossed the border.                    (5th Cir. 1990). “The Sentencing Guidelines
                                                      are subject to the rules of statutory
   During the investigation of the kidnaping,         construction.” Id. at 243 (citation omitted).
an informant told the FBI that Zacarias was           “[T]his court follows the clear, unambiguous
involved, and provided an FBI agent with              language of the Guidelines if there is no
Zacarias’s pager number. One of Mario San-            discernible manifestation of contrary intent.”
chez’s sisters, who had been negotiating for          Id.
his release, also provided the FBI with the
same pager number, which was given to her by              Section 2A4.1(b)(1) provides that “[i]f a
the person with whom she had been                     ransom demand or a demand upon government
negotiating, who identified himself as “Juan.”        was made, increase by 6 levels.” Zacarias
The pager number was listed in the name of            argues that this means that if a ransom demand
Mario Zacarias, Juan’s brother, and the               or other demand was made on the
address listed on the account was Juan’s              government, an increase is applicable, but that
parents’ house.                                       the increase in no way applies to cases in
                                                      which ransom demands are made on
   After collecting this information, the FBI         individuals. He arrives at this conclusion by
compiled photo arrays of five individuals with        citing the “doctrine of the last antecedent” and
similar builds and facial features to Zacarias.       then giving this doctrine its opposite meaning.
After being shown the photos separately,
Mickens and Redic identified Zacarias as the             Zacarias quotes United States v. Campbell,
kidnaper known as “Juan.”                             49 F.3d 1079, 1086 (5th Cir. 1995), which
                                                      states that “qualifying words, phrases, and


                                                  3
clauses are to be applied to the words or               the use of guns by others cannot be attributed
phrases immediately preceding, and are not to           to him for sentencing purposes. Unfortunately
be construed as extending to . . . others more          for Zacarias, this interpretation ignores the
remote.” Just so, and because of the doctrine           plain language of the guidelines.
of the last antecedent, Zacarias’s interpretation
is completely wrong.                                       Section 1B1.3(a)(1)(A) allows the court to
                                                        consider “all acts and omissions committed,
   The words “upon government” qualify only             aided, abetted, counseled, commanded,
“demand” but not the disjunctive “ransom de-            induced, procured, or willfully caused by the
mand” that appears before the “or.” Cf. Reiter          defendant” in determining relevant conduct for
v. Sonotone Corp., 442 U.S. 330, 339 (1979)             sentencing guideline purposes.          Further,
(stating that terms connected by the disjunctive        § 1B1.3(a)(1)(B) states that “all reasonably
are to be given separate meanings). The court           foreseeable acts and omissions of others in
correctly applied the six-level increase for a          furtherance of the jointly undertaken criminal
ransom demand.                                          activity” constitute relevant conduct to be con-
                                                        sidered by the court . Finally, the defendant
                     III.                               can be held accountable for the conduct of
   Zacarias contends that the court erred in            others whether or not the defendant is charged
making a two-level increase pursuant to                 with a conspiracy. See § 1B1.3(a)(1)(B),
§ 2A4.1(b)(3) for the use of a dangerous                comment. (n.2).
weapon. He argues that he did not possess or
use a weapon during the commission of the                  Use of a dangerous weapon was more than
crime and that, because he was not indicted for         reasonably foreseeable to Zacarias, who, in
conspiracy, he cannot be held accountable for           fact, had actual knowledge that dangerous
the conduct of the men who had guns.                    weapons were being used as he directed the
                                                        holding and ransoming of Mickens. Thus, at
   We review de novo any legal conclusions              best Zacarias “aided” and “abetted” the use of
regarding application of the guidelines. See            guns in holding Mickens, and, more probably,
United States v. Gonzalez, 996 F.2d 88, 91              he “counseled, commanded” and “induced” the
(5th Cir. 1993). Section 2A4.1(b)(3) provides           use of the firearms. See § 1B1.3(a)(1)(A); cf.
that “[i]f a dangerous weapon was used,                 United States v. Aguilera-Zapata, 901 F.2d
increase by 2 levels.” “Use” of a dangerous             1209, 1212-16 (5th Cir. 1990).
weapon includes the discharge of a firearm or
conduct that amounts to “more than                                            IV.
brandishing, displaying, or possessing a firearm           Zacarias contends that the court deprived
or other dangerous weapon.” § 2A4.1, com-               him of his Sixth Amendment right to
ment. (n.2); U.S.S.G. § 1B1.1, comment.                 confrontation and cross-examination when it
(n.1(g)).                                               refused to admit into evidence a tape recording
                                                        of a conversation between the victim,
   The district court correctly concluded that          Mickens, and Francisco Sanchez, the brother
the use of guns to hold Mickens hostage was             of Mario Sanchez, the other kidnaping victim.
a “use” under the guidelines. Zacarias does             Zacarias contends that the tape would have
not disagree with this conclusion but avers that        shown that Francisco Sanchez threatened


                                                    4
Mickens by saying that someone had to “pay               of a tape recording of a telephone
for what happened to his brother,” and that the          conversation between Mickens and Francisco
tape would have impeached Mickens’s                      Sanchez. Zacarias argued that Francisco San-
testimony by showing that fear of Francisco              chez stated on the tape that he was going to
Sanchez gave Mickens a motive to testify that            “get everybody” in retaliation for his brother’s
Zacarias was a kidnaper. Zacarias contends               kidnaping. Zacarias argued that Francisco
that the relevant evidence on the tape would             Sanchez was dangerous and terrifying, that his
have discredited the other evidence against              entire family was afraid of him, and that he
him, which consisted only of “weak out of                threatened Mickens. Zacarias argued that the
court identifications and questionable in court          tape constituted relevant evidence of Mick-
identifications.”                                        ens’s motive for testifying against Zacarias,
                                                         i.e., to show that “somebody needs to go
   The government contends that the court                down on this case.”
properly excluded the recording, because the
information on the tape was not relevant, was                The court offered to admit a portion of the
hearsay, and was only a collateral matter for            recording that described Zacarias, identified as
impeachment. The government contends, in                 Juanito on the tape, as a fat person, because at
the alternative, that even if the exclusion of the       trial, Zacarias was “not so fat.” The court
evidence was error, the error was harmless,              concluded that nothing else on the tape was
because the evidence that identified Zacarias            admissible “for any conceivable purpose.” The
was strong and was corroborated by other                 court explained that evidence of Francisco
evidence.                                                Sanchez’s making threats was not admissible
                                                         or relevant, because he was not involved in the
   A witness’s possible bias, prejudice, or mo-          case.
tivation for testifying is relevant evidence. See
United States v. Alexius, 76 F.3d 642, 645                  Zacarias’s attorney cross-examined Mick-
(5th Cir. 1996). The exclusion of evidence rel-          ens concerning his fear of Francisco Sanchez,
evant to the bias or ulterior motive of a wit-           and Mickens said that he was not afraid.
ness may violate the Sixth Amendment. Unit-              When he was asked whether everyone in the
ed States v. Fortna, 796 F.2d 724, 734 (5th              Sanchez family was afraid of Francisco San-
Cir. 1986). Nevertheless, a court retains broad          chez, Mickens testified: “I wouldn’t say ev-
discretion “in restricting the scope of cross-           erybody’s afraid of him. I will say he’s crazy.
examination, including how bias may be                   But I wasn’t afraid of him or nothing like
proved.” Id. (citations omitted).                        that.” Mickens reiterated that he did not have
                                                         any reason to be afraid of Francisco Sanchez.
    We review a restriction on the scope of
cross-examination only for abuse of discretion.             At that point, Zacarias’s counsel referred to
Alexius, 76 F.3d at 644. “[E]videntiary rulings          the tape recording of the telephone
constitute reversible error only when they               conversation between Mickens and Francisco
affect a defendant’s substantial rights.” Id.            Sanchez. Mickens denied having a telephone
(citation omitted).                                      conversation with Francisco Sanchez. Later,
                                                         during the defense’s presentation of its case,
   Zacarias sought the admission into evidence           Mickens testified that he did not remember


                                                     5
having the telephone conversation with                 Mickens’s friend, Roderick Redic, who
Francisco Sanchez.                                     delivered the ransom and the truck title in
                                                       exchange for Mickens’s release, also identified
    A portion of the tape was then played while        Zacarias in a pretrial photographic line-up and
the jury was present. After hearing a portion          at trial.
of the tape, Mickens identified his voice and
Francisco Sanchez’s voice, and Mickens iden-               Moreover, an FBI agent testified that a
tified another person who was present during           government informant had connected Zacarias
the telephone conversation that had been re-           to the kidnaping and gave him a pager number
corded.                                                that matched a pager number that the agent
                                                       had been given by another source. The pager
    Zacarias’s counsel asked Mickens whether           was registered to Zacarias’s parents’ house.
Francisco Sanchez had threatened him and               The informant provided corroboration that Za-
“everyone else in the world” during the                carias was involved in the kidnaping through
recorded conversation. Mickens denied that             telephone calls made by the informant to the
Francisco Sanchez had threatened him. Za-              pager number.
carias’s attorney offered the tape as
impeachment evidence. The court stated that                Although Zacarias asserts that the out-of-
“it would be impeachment as to a completely            court and in-court identifications were weak
collateral matter, so it’s not admissible.” The        and questionable, the record does not support
court, however, allowed Zacarias to include            this assertion. The eyewitnesses did not hes-
the tape as a record exhibit. On redirect,             itate in their identifications of Zacarias, and
Mickens admitted that “people are afraid” of           nothing in the record provides reason to
Francisco Sanchez but again denied that he             question the reliability of the photo
was afraid of him.                                     identification. Finally, Zacarias’s counsel also
                                                       took the opportunity to cross-examine Mick-
    A witness’s biases and motivation for tes-         ens about his fear of Francisco Sanchez.
tifying are “always relevant as discrediting the
witness and affecting the weight of his                    Even if Mickens’s motive for identifying
testimony.” Alexius, 76 F.3d at 645 (citation          Zacarias as one of his kidnapers was fear of
and internal quotations omitted). Assuming             Francisco Sanchez, the fact remains that Redic
arguendo that the district court erred by ruling       separately identified Zacarias as the one to
that the alleged impeachment portion of the            whom he paid the ransom. Thus, for Zacari-
tape recording was not admissible, the                 as’s theory of defense to be borne out, there
exclusion of the evidence was harmless,                also must have been a reason for Redic not
because “it is clear beyond a reasonable doubt         only to lie about Zacarias’s being the ransom-
that the error did not contribute to the               er, but there must also have been a reason for
verdict.” Id. at 646 (citation omitted).               Redic to pick out Zacarias’s photograph from
                                                       the photo line-up. Zacarias provided no evi-
   Zacarias did not testify; his only defense          dence casting doubt on Redic’s testimony, nor
was erroneous identification. In a pre-trial           could he dispute the government’s
photographic line-up and at trial, Mickens             corroborating evidence that a pager linked to
identified Zacarias as one of the kidnapers.           Zacarias was used as part of the ransom


                                                   6
negotiations surrounding the holding of Mario
Sanchez.
   There was ample evidence upon which to
convict, and, therefore, it is plain beyond a
reasonable doubt that any fear Mickens had of
Francisco Sanchez did not contribute to the
verdict.   The exclusion of the alleged
impeachment evidence on the tape recording
was harmless.

                       V.
   In his statement of the case, Zacarias makes
a passing charge that the evidence against him
was insufficient to support his conviction, but
he does not mention this challenge elsewhere
in his brief. We deem this issue waived,
because it was not adequately briefed. See,
e.g., United States v. Mullin, 178 F.3d 334,
340 n.1 (5th Cir. 1999).

   AFFIRMED.




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