     Case: 14-41450      Document: 00513353330         Page: 1    Date Filed: 01/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-41450                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 22, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

EUGENIO PEDRAZA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:13-CR-305


Before SMITH, WIENER, and GRAVES, Circuit Judges.
PER CURIAM:*
       Eugenio Pedraza appeals his conviction, under 18 U.S.C. §§ 371, 1519
and 1505, for conspiracy to falsify, and for falsifying, investigative reports
while he was the Special Agent-in-Charge of the McAllen, Texas office of the
U.S. Department of Homeland Security’s Office of Inspector General. Finding
no reversible error, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41450
                 FACTS AND PROCEDURAL HISTORY

      Eugenio Pedraza was the Special Agent-in-Charge (SAC) of the McAllen,
Texas office of the U.S. Department of Homeland Security’s (DHS) Office of
Inspector General (DHS-OIG).       DHS-OIG is responsible for investigating
wrongdoing by DHS employees. Pedraza was responsible for supervising these
investigations and approving and signing DHS-OIG agents’ investigative
reports.
      In 2011, Pedraza learned his office would undergo an internal DHS-OIG
inspection and became aware of which files the inspectors would review. In
preparation for this inspection, Pedraza instructed several of his agents to
falsify investigative reports to “fill the gaps” in cases that had been open for
more than a year and where there had been little, if any, activity for an
extended period of time. These cases included allegations against a customs
officer who was suspected of smuggling narcotics and aliens into the United
States for a Mexican cartel; a border patrol agent who allegedly approached a
Federal Bureau of Investigation (FBI) informant and offered to help smuggle
drugs and aliens into the United States; a customs officer who allowed a
recreational vehicle to enter the United States with 1700 pounds of marijuana;
a border patrol agent who was allegedly facilitating the smuggling of aliens
and cocaine into the United States; a border patrol agent who was allegedly
facilitating the transportation of pregnant women into the United States; and
a border patrol agent who was allegedly selling fraudulent entry documents.
      During the inspection, claims that Pedraza had instructed agents to
falsify records were disclosed to Inspector James Izzard.         DHS Deputy
Assistant Inspector General John Ryan conducted an investigation and
completed a report dated November 3, 2011. Ryan’s report concluded that none
of the agents heard Pedraza use the word “fabricate” and that the allegations

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                                  No. 14-41450
were “related to the anxiety, pressure to have a successful inspection, lack of
management oversight and miscommunication among staff and management.”
Ryan also concluded that he believed a “lack of clear communication between
the field agents and the SAC led to a misunderstanding of what the SAC
expected from the field agents” and closed the investigation.
      Following an FBI investigation, Pedraza was charged in a 13-count
indictment. The district court dismissed five counts prior to trial. Pedraza
moved to admit Ryan’s report as an exhibit under the public records exception
to the hearsay rule, Rule 803(8)(A)(iii) and (B) of the Federal Rules of Evidence.
The district court denied Pedraza’s request on the basis that Ryan lacked
authority to conduct the investigation, Ryan was being investigated for
covering up Pedraza’s criminal conduct, and the report contained inadmissible
hearsay.   However, the final DHS-OIG inspection report, which made no
allegation of wrongdoing, was admitted. Pedraza also filed a motion to dismiss
the section 1519 counts, alleging that section 1519 did not apply to an agency’s
internal processes. The district court denied the motion.
      Following a trial, Pedraza was convicted of the following:
      • Count 1 – Conspiring with other agents “to falsify documents and
        make false entries in records with the intent to impede, obstruct, and
        influence the investigation and proper administration of a matter
        within the jurisdiction of DHS-OIG” with regard to the criminal
        investigations in violation of 18 U.S.C. § 1519 and with regard to the
        September 2011 inspection in violation of 18 U.S.C. § 1505.

      • Counts 2, 4, 6, 10, and 11 – Violating 18 U.S.C. § 1519 by falsifying
        documents and making false entries in case files “with the intent to
        impede, obstruct, and influence the investigation and proper
        administration” of the criminal investigations and the 2011
        inspection in violation of 18 U.S.C. § 1505.

      Pedraza was sentenced to 37 months’ imprisonment and subsequently
filed this appeal.

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                                   No. 14-41450


                                  DISCUSSION
I. Whether the district court abused its discretion by excluding a
defense exhibit consisting of an investigative report by a DHS
inspector regarding the allegations against Pedraza.

      This court reviews the district court’s exclusion of evidence for an abuse
of discretion, subject to harmless error. United States v. Sharpe, 193 F.3d 852,
867 (5th Cir. 1999). Evidentiary rulings will be affirmed unless they affect a
defendant’s substantial rights. Id. See also United States v. Macedo-Flores,
788 F.3d 181, 191 (5th Cir. 2015).
      Pedraza asserts that the district court abused its discretion by not
admitting the Ryan report under the public record hearsay exception of Rule
803 of the Federal Rules of Evidence. Specifically, Pedraza argues that Ryan’s
investigation was authorized by law and that the report was trustworthy.
      The government asserts that Pedraza failed to establish that Ryan had
legal authority to conduct the investigation and the court properly found the
source of information was not trustworthy.
      Rule 803 provides, in relevant part, that a “record or statement of a
public office” is not excluded by the rule against hearsay if it sets out “in a civil
case or against the government in a criminal case, factual findings from a
legally authorized investigation; and the opponent does not show that the
source   of   information    or   other   circumstances      indicate   a   lack   of
trustworthiness.” Fed. R. Evid. 803(8)(A)(iii), (B).
      The district court allowed the admission of the DHS-OIG inspection
report. However, the district court would not preadmit Ryan’s separate report,
which included double hearsay in the form of Pedraza’s self-serving statements
to Ryan as well as Ryan’s personal opinions or conclusions. The district court
indicated that it would consider admitting the exhibit later, assuming Pedraza

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                                        No. 14-41450
established that it fell within the Rule 803 exception.                        During cross-
examination of one of the agents, Pedraza again attempted to get the report
admitted based on a series of questions about whether Pedraza ever used the
word “falsify.” The district court denied admission.
       Pedraza asserts that the Ryan report documented a legally authorized
investigation under 5 U.S.C. § App. 3, § 4(a)(1). 1 However, as the district court
stated, DHS-OIG inspectors normally do not inspect the inspectors. Further,
the final DHS-OIG report was admitted. Moreover, regardless of whether
Ryan’s report was a public record that set forth the findings of a legally
authorized investigation, the source of information indicates a lack of
trustworthiness. See Fed. R. Evid. 803(8)(B).
       Pedraza      asserts    that    the    government        failed   to   establish     the
untrustworthiness as required by Moss v. Ole South Real Estate, Inc., 933 F.2d
1300 (5th Cir. 1991).          However, as Pedraza conceded in his sentencing
memorandum, the district court was already aware that Ryan was being
investigated for covering up any wrongdoing. While discussing his cooperation
with authorities, Pedraza stated that: “As the court will recall from reading
the grand jury transcripts and other case materials, there was (and
presumably is) an investigation into actions by higher-ups within the
Washington management structure of the DHS-OIG. In particular, John Ryan
was mentioned as being under investigation.” Pedraza then recounted how
Ryan’s action of instructing Pedraza to send documents to an outside fax
number “clearly seems to fit the government’s theory that Ryan desired to




       1 “It shall be the duty and responsibility of each Inspector General, with respect to the
establishment within which his Office is established . . . to provide policy direction for and to
conduct, supervise, and coordinate audits and investigations relating to the programs and
operations of such establishment. . . .” 5 U.S.C. § APP. 3 § 4(a)(1).
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                                 No. 14-41450
cover up any problems with the McAllen Field Office and to keep those
problems from other Washington headquarters managers.”
      Therefore, we conclude that Pedraza has failed to establish that the
district court abused its discretion.       Further, even if the court erred by
excluding Ryan’s report, there is no indication that the report would have a
substantial impact on the jury’s verdict, thus any error would be harmless.
II. Whether 18 U.S.C. § 1519 applies to attempts to influence the
internal processes of an agency.
     This court reviews de novo a claim regarding the proper interpretation
of a statute. United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008).
             The starting point for interpreting a statute is the language
      of the statute itself. When construing a criminal statute, we must
      follow the plain and unambiguous meaning of the statutory
      language. Terms not defined in the statute are interpreted
      according to their ordinary and natural meaning . . . as well as the
      overall policies and objectives of the statute. Furthermore, a
      statute must, if possible, be construed in such fashion that every
      word has some operative effect. Finally, we have found it
      appropriate to consider the title of a statute in resolving putative
      ambiguities.

United States v. Kay, 359 F.3d 738, 742-43 (5th Cir. 2004) (internal marks and
footnotes omitted).
      Pedraza asserts that his convictions on Counts 1, 2, 4 and 6 should be
reversed “because 18 U.S.C. § 1519 does not apply to attempts to impede the
internal policies and processes of an agency, including, in this case, the
internal DHS inspection.”
      The government asserts that this claim is without merit as section 1519
prohibits Pedraza’s conduct.
      Section 1519 states:
      Whoever knowingly alters, destroys, mutilates, conceals, covers
      up, falsifies, or makes a false entry in any record, document, or
      tangible object with the intent to impede, obstruct, or influence the
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                                 No. 14-41450
      investigation or proper administration of any matter within the
      jurisdiction of any department or agency of the United States or
      any case filed under title 11, or in relation to or contemplation of
      any such matter or case, shall be fined under this title, imprisoned
      not more than 20 years, or both.

18 U.S.C. § 1519.
      Pedraza argues that “within the jurisdiction” does not apply to an
agency’s internal processes or inspections.      Pedraza does not offer any
persuasive authority for such a proposition. Further, the plain language of
section 1519 renders Pedraza’s argument meritless.
      Accordingly, we conclude that the district court did not err in not
dismissing the counts under section 1519.
III. Whether the evidence sufficiently supported Pedraza’s
convictions on Counts 10, 11, 4 and 6.
     This court reviews challenges to the sufficiency of the evidence de novo.
United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). The court views all
evidence in the light most favorable to the government, with all reasonable
inferences and credibility determinations made in the light most favorable to
the verdict. Id.
      Pedraza asserts that the evidence was insufficient to establish that he
intended to interfere with a criminal investigation. Alternatively, Pedraza
argues that the district court abused its discretion in denying his motion for a
new trial.
      Count 10 charged Pedraza with attempting to influence an investigation
involving Special Agent Edwin Castillo in violation of 18 U.S.C. § 1519.
Pedraza argues that Castillo’s testimony “makes clear that Agent Pedraza was
simply asking Agent Castillo to prepare the paperwork to close out a dormant
investigation” that he believed was a “dead file.” However, the record does not
support that claim.

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                                       No. 14-41450
      Castillo testified that Pedraza instructed him to draft and sign a
memorandum of activity (MOA) in a case involving an allegation received by
Border Patrol Officer Ricardo Villarreal that another border patrol officer was
selling fraudulent documents or entry permits for a fee of $600. 2 Villarreal
had reported that he received the information from a driver who crosses at the
Los Indio, Texas, Port of Entry (POE) on a daily basis. This matter was
reported to DHS on January 19, 2010, and there had been no activity on it for
a substantial period of time. Castillo testified that Pedraza instructed him on
what to include in the MOA, specifically, that DHS-OIG had attempted and
failed to identify and locate the “unknown motorist” making the allegation
against the border patrol officer. Castillo testified that he had not worked on
the case and that he believed the information Pedraza instructed him to
include in the MOA was false.              Castillo had not performed any of this
investigative work and did not have knowledge of anyone else in the office
conducting such work. Castillo also testified that Pedraza also then instructed
him to draft a report to close the investigation. Castillo later reported these
activities to Izzard during the office inspection.
      Pedraza argues that this evidence was insufficient because there was a
report from another agent, Rudy de Luna, who said he had attempted to locate
the source in this matter. However, de Luna did not testify at trial and Castillo
testified that he had not seen de Luna’s report. Further, the record fails to
establish that de Luna’s report was in the case file at the time Pedraza
instructed Castillo to draft the MOA or closing report. While Castillo’s report
was prepared in 2011, it was dated January 19, 2010. De Luna’s report was
dated February 3, 2010, but there is no way of knowing whether it was also
backdated. Regardless, even if de Luna had completed such a report prior to


      2   Castillo testified pursuant to a verbal non-prosecution agreement.
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                                  No. 14-41450
Castillo, it would have no bearing on the veracity of the information Castillo
testified that Pedraza instructed him to include in his report.
       Additionally, Villarreal testified at trial that he knew the identity of the
individual who had provided the information regarding the corrupt border
patrol officer and had developed a rapport with him over a period of time
because he crossed the border on a daily basis. Further, Villarreal testified
that he and the “unknown motorist” had met with two other DHS-OIG agents,
Wayne Ball and Camillo Garcia, and that they were provided with the
individual’s identity. Villarreal also testified that de Luna never contacted
him.
       Count 11 charged Pedraza with attempting to obstruct a criminal
investigation involving Special Agent Rolando Gomez and the deactivation of
a confidential source in violation of 18 U.S.C. § 1519. Pedraza asserts that
“Agent Gomez’ testimony makes clear that the investigation was over” and that
deactivating the source was merely the final step in closing the investigation.
Pedraza also asserts that both the testimony of Gomez and Special Agent Della
Saenz establish that this was just an internal procedure and had nothing to do
with obstructing a criminal investigation. But, again, the record does not
support Pedraza’s claims.
       Gomez testified that Pedraza instructed him to include false information
in a MOA in a case involving a confidential informant (CI) and a corrupt
Customs inspector who was facilitating the smuggling of aliens into the United
States. The CI was given an immigration document allowing her to remain in
the United States as long as she cooperated with law enforcement in a criminal
investigation. Gomez testified that the CI later complained about the way she
was being treated and that Pedraza instructed him to deactivate her. The CI
was then deactivated and, thus, had to return her immigration documents.
Upon deactivation, she was escorted back to Mexico by Agents Saenz and
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                                        No. 14-41450
Marco Rodriguez. Gomez testified that he informed Pedraza that Saenz and
Rodriguez were escorting the CI back to Mexico shortly after the agents left
the office with the CI.
       Gomez testified that he later drafted the MOA and included a statement
that the CI had been returned to Mexico by Rodriguez and Saenz. However,
Pedraza removed the names of Rodriguez and Saenz and changed the MOA to
say that Gomez and “Joe Blow” escorted the CI to the POE. Gomez testified
that he confronted Pedraza and told him that information was incorrect, but
that Pedraza told him, “I had to put my name in the report, in the
memorandum of activity because she was my source, and that’s how
headquarters wanted it.” Gomez then instead changed the MOA to say that
he and Saenz returned the CI to Mexico because he felt it would be better to
include a female’s name since the CI was female than to use the name “Joe
Blow.” Pedraza approved this MOA. Gomez later reported this incident to his
new supervisor, David Green.
       In his brief, Pedraza cites his opening statement, which is not evidence,
that his instruction to change the names was based on his “mistaken belief”
that Gomez personally escorted the CI back to Mexico and that “Joe Blow” was
just a placeholder for the correct name. Pedraza also asserts that there is no
evidence that he knew Gomez did not escort the source back to Mexico.
However, email messages document the edits that were exchanged between
Pedraza and Gomez and lend credibility to the testimony offered by Gomez. 3
       Counts 4 and 6 charged Pedraza and Marco Rodriguez with knowingly
falsifying documents related to investigations in cases involving corrupt border



       3 Saenz also testified that Pedraza instructed her to “bridge the gaps” in case files that
she had not worked on, but she told him she could only document when an investigation was
actually assigned to her. Various other agents also testified, as set out in the briefs and the
record, but Pedraza is not challenging the sufficiency of the evidence as it relates to them.
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                                      No. 14-41450
patrol officers facilitating the smuggling of narcotics and aliens, including
pregnant females, in violation of 18 U.S.C. § 1519. Pedraza simply asserts
that: “There was no evidence that Pedraza and Rodriguez, with whom he did
not get along, ever discussed backdating reports. Nor was there any evidence
that Agent Pedraza possessed the necessary intent to interfere with either the
inspection or a criminal investigation.” However, the record does not support
Pedraza’s argument.
       Special Agent Laura Sirles testified regarding evidence that established
the falsity of dates Pedraza and Rodriguez claimed certain actions were taken.
Further, Special Agent Eraslio Flores testified regarding Pedraza’s “very
stressed out” and nervous demeanor regarding the upcoming inspection and
his statement that “I don’t want anything to come back on me. Not one thing.” 4
       With respect to counts 4 and 6, the government correctly cites United
States v. Kington, 875 F.2d 1091 (5th Cir. 1989), for the proposition that:
“[W]here, as here, the government presents circumstantial evidence of an
ongoing pattern of similar transactions, the jury may reasonably infer from the
pattern itself that evidence otherwise susceptible of innocent interpretation is
plausibly explained only as part of the pattern.” Id. at 1100.
       We conclude that “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis original).
Thus, we affirm on this issue.




       4 Additionally, Flores testified that Pedraza also asked him to “bridge the gap” on a
case he had never previously worked on and got “upset” and “his face got flushed” when Flores
told him he could not do that.
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                              No. 14-41450
                             CONCLUSION
    For the reasons set out herein, Pedraza’s final judgment of conviction is
AFFIRMED.




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