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Media Alerts - United States v. Gutierrez de Lopez- Tenth Circuit
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August 11, 2014
  United States v. Gutierrez de Lopez- Tenth Circuit
Case Name: United States v. Gutierrez de Lopez

Headline: Tenth Circuit Affirms Conviction Despite Government's Presentation of Anonymous Witness Testimony Without Establishing Safety Concerns

Areas of Law: Criminal Law, Evidence

Issue Presented:

1. Did the District Court err in permitting a Border Patrol agent to testify about the outcome of his investigation of two undocumented individuals when he did not personally observe it?

2. Did the District Court err in permitting a Border Patrol agent to testify as an expert witness about the undocumented alien-smuggling trade?

3. Did the District Court permit a reversible error in allowing two Government witnesses to testify anonymously when the Government raised general concerns for their safety and provided defense counsel with background and impeachment material?

Brief Summary:

The Tenth Circuit held that a Border Patrol Agent's fact testimony did not violate the confrontation clause or the rules of evidence, that the same agent's expert testimony about the smuggling of undocumented individuals was helpful to the jury and permissible expert witness testimony. The District Court erred in finding that the Government provided adequate safety concerns to allow witnesses to testify anonymously, but because the defense was given the opportunity to conduct an effective cross-examination, this error was harmless beyond a reasonable doubt.

Extended Summary:

Defendant Maria Gutierrez de Lopez (Gutierrez) appealed her conviction of one count of conspiring to transport undocumented aliens in violation of 8 U.S.C. ยง 1324(a)(1)(A)(v)(I). On appeal, she argued that Border Patrol Agent Brian Knoll's testimony about the undocumented individual's immigration status was hearsay, that his expert testimony about alien-smuggling was not helpful to the jury, and that the Government's use of anonymous witnesses was a violation of the Confrontation Clause of the Sixth Amendment. The court affirmed the conviction.
Gutierrez was arrested after a sting operation where federal law enforcement officers caught Jesus Cabral-Ramirez and Gutierrez attempting to transport an undocumented alien to Denver, Colorado from El Paso, Texas. At trial, Agent Knoll testified about the status of the undocumented individual, and acted as an expert witness on the subject of transporting undocumented aliens, stating that moving undocumented individuals away from border regions decreased the odds that they would be apprehended.
The government also relied on testimony from confidential informants who testified anonymously at trial about conversations they had with Gutierrez. The Government supplied the witnesses' criminal backgrounds, compensation records, and immigration status to the defense, but did not provide the witnesses' actual identities. The defense was able to cross-examine the witnesses, but was not able to conduct a typical independent pre-trial investigation.
The Federal Bureau of Investigation (FBI) and United States Border Patrol arrested "John Smith" (John Smith is an alias used by the government) for attempting to transport an undocumented alien during a sting operation known as "Operation Desert Tolls," meant to investigate alien-smuggling operations in the Southwest. Mr. Smith then went to work for the FBI as a confidential informant. It was through investigation of Mr. Smith's interactions with Gutierrez regarding the transport of an individual from El Paso to Denver that the FBI apprehended Gutierrez.
The court first ruled on the hearsay issue. Agent Knoll testified that he processed the undocumented individuals in the same way that he would have processed anybody under the same circumstances. The court allowed Agent Knoll to testify that one of the individuals who was apprehended during the investigation was sent back to Mexico, while another stayed in the United States awaiting a hearing in front of an immigration judge. Although defense counsel objected that Agent Knoll did not have personal knowledge of what happened to the undocumented individuals, the trial court ruled that there was a sufficient foundation for the testimony, because Agent Knoll was an experienced Border Patrol agent and personally conducted the investigation.
The court noted that evidentiary issues are reviewed for abuse of discretion, but reviewed Confrontation Clause claims de novo. The court stated that testimony should only be excluded for lack of personal knowledge if the witness could not have actually perceived what he was testifying about. Therefore, if a rational juror could conclude that the witness had personal knowledge, the witness is allowed to testify. Because Agent Knoll was involved in the processing of the undocumented individuals and only used the immigration file to refresh his recollection of the individuals' names, a reasonable jury could conclude that he had personal knowledge sufficient to testify about the end result of the investigation. The court held that his testimony was sufficient to support the notion that he had personal knowledge of the individual's fate under Fed. R. Evid. 602. The court also held that the statements were not a violation of the Confrontation Clause because Agent Knoll appeared at trial, and testified about his own observations. Further, defense counsel had the opportunity to cross-examine the witness.
Next, the court addressed the expert testimony issue. Agent Knoll testified at trial that transporting undocumented individuals away from border towns "furthered" their ability to stay in the country undetected. The court reviewed the standard for expert testimony under Fed. R. Evid. 702, as set forth by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011). According to Rule 702, in order to give opinion testimony, an expert must have scientific, technical or specialized knowledge that will help the jury understand the evidence or determine a fact. The court held that Agent Knoll's testimony about the alien smuggling trade was helpful because the average juror was unlikely to know anything about it. The court also noted that the Fifth and Ninth Circuits had allowed experts to testify about the alien smuggling trade in criminal cases. The court also noted that Agent Knoll's comment that moving undocumented individuals away from the border "furthers" their presence was also permissible, because it was neither incorrect nor likely to cause the jury confusion, and thus was admissible.
The court then turned to the issue of anonymous witness testimony. Gutierrez argued that allowing anonymous witnesses to testify violated her Confrontation Clause rights. Additionally, she argued that the government's failure to use a curtain or disguise the witnesses' voices undermined the seriousness of the need to have the witness testify anonymously. At trial, the government explained that the ongoing alien smuggling investigation was ongoing, and that there were cartel connections to the case that made it dangerous to disclose the witnesses' names in open court, even though Gutierrez was not directly a danger to them. After the defense renewed its objection following the direct examination, the government explained that it had witnesses testify the same way in another trial because the witnesses were still part of the investigation. The government also brought up a drug and money laundering case that led to a cooperating witnesses' decapitation. Because the government relied on security concerns as the basis for not disclosing the names of the witnesses, the court allowed them to testify anonymously. The defense then cross-examined them on their criminal history, compensation, immigration status, and ties to Mexico.
The court explained that the Confrontation Clause requires the literal right to confront witnesses, and that Gutierrez had that opportunity. Additionally, the Confrontation Clause allows the defense to bring facts to the jury's attention that could allow them to draw inferences regarding the credibility of the witness. The court explained that in Smith v. Illinois, 390 U.S. 120 (1968), the Supreme Court held that the right to confrontation includes the right to ask the witness who he is and where he lives. However, the Supreme Court also noted that lower courts have a duty to protect witnesses from questions that go beyond the scope of proper cross-examination. Justice White, concurring in Smith, would have included in this category questions which endanger the safety of the witness, in addition to questions that harass, annoy, or humiliate witnesses, as noted by the majority. The court stated that in United States v. Smaldone, 484 F.2d 311, 318 (10th Cir. 1973), the Tenth Circuit interpreted the holding in Smith to include protecting the witness from danger.
Although the Tenth Circuit has not previously provided a standard for determining if anonymous testimony is permissible, it has adopted the standard used in several other circuits. Anonymous testimony should be evaluated "by asking (i) whether the government has demonstrated a threat and if so, (ii) whether anonymous testimony deprived the defendant of an opportunity for effective cross-examination."
With respect to the first prong, whether the government demonstrated a threat, the government must demonstrate why the witness need not answer the question. Smith, 390 U.S. at 134 (White, J., concurring). The threat does not have to come from the defendant. United States v. Celis, 608 F.3d 818, 832 (D.C. Cir. 2010). However, the statement must be more than a generalized statement and not just speculation. United States v. Ramos-Cruz, 667 F.3d 486, 501 (4th Cir. 2012). In Smaldone, the Tenth Circuit prevented the defense from presenting the address of a government witness who was involved in a relocation program.
After the threat has been established, a court must consider whether the defendant has been deprived of an effective cross-examination. Effective cross-examination means that the jury must have sufficient information to make a "discriminating appraisal" of the issue. Miranda v. Cooper, 967 F.2d 392, 402 (10th Cir. 1992). Again referring to Smaldone, the Tenth Circuit noted that it affirmed the district court's restriction because there was no lack of knowledge of the witnesses' background, and the defense was able to conduct a detailed cross-examination. The court noted that other circuits consider whether the defendant was given the witness's real name before testifying, and whether the defendant was allowed to cross-examine the defendant on his background.
The court noted that although one way of satisfying the effective cross-examination requirement is to provide defense counsel with the witness's name, but allow the witness to testify under an alias, there are other options. The witness's name should be considered part of a balancing inquiry. The court noted that several circuits held that the right to effective cross-examination was not violated even when the defense was not provided with the witness's name. In Ramos-Cruz, the Fourth Circuit stated that the witnesses were allowed to testify anonymously because the government disclosed the subject of the testimony. In United States v. El-Mezain, 664 F.3d 467, 493 (5th Cir. 2011), the Fifth Circuit held that the defense had access to the witnesses' "employment, nationalities, and backgrounds in order to conduct meaningful cross-examination."
Based on these decisions, the court held that if the government gives sufficient background information on the witness it wishes to call anonymously, the right to effective cross-examination is not violated. The court then conducted a de novo review of the facts in the present case to determine if the right to effective cross-examination had been violated.
Gutierrez argued that the government "failed to justify secrecy" and that the anonymous testimony deprived her of the opportunity to conduct an effective cross-examination. The government disagreed with these assertions and also argued that any error was harmless.
The court agreed that the Government did not adequately prove the need for the witnesses to testify anonymously, and that the court abused its discretion in determining that it had. The court held that specific evidence of a threat was not provided, and that the Government failed to support its generalized assertions with specific evidence of a threat.
Despite the error with regard to secrecy, the court determined that Gutierrez still had an opportunity to effectively cross-examine the witnesses. Gutierrez was able to face the witnesses before the jury and had ample impeachment material provided by the Government. The cross-examination by the defense was able to give the jury sufficient information to determine how much credibility to give to the witnesses, including a felony conviction, misdemeanor convictions for fraud and perjury, and a receipt showing payment for the testimony.
Even though the Government did not adequately show a threat to the witnesses' safety, the court determined that this was harmless error, because the Government's disclosures allowed the defense to conduct an effective cross-examination. The court noted that Confrontation Clause analyses are subject to a harmless error standard, where the beneficiary of the error must show that the error did not contribute to the guilty verdict. United States v. Chavez, 481 F.3d 1274, 1277 (10th Cir. 2007). In determining whether the error was harmless, the court considers the importance of the witness's testimony, whether the testimony was cumulative, whether there is any corroborating or contradicting evidence on material points, the extent of the permitted cross-examination and the strength of the prosecution's case. United States v. Woodard, 699 F.3d 1188, 1198 (10th Cir. 2012).
Here the prosecution had to show that the threat was harmless beyond a reasonable doubt. One witness's testimony about his conversations with the defendant about their trip from El Paso to Albuquerque was not important to the Government's case, and the other evidence presented by the Government was sufficient to convict Gutierrez beyond a reasonable doubt. The court determined that much of the anonymous witness testimony was cumulative, and that on the material points of the testimony, the Government provided corroborating evidence. Additionally, the substantial cross-examination of the anonymous witnesses based on the information provided by the Government allowed the defense to undermine the credibility of those witnesses. Finally, the Government had such a strong case that the error was harmless. The Government, in addition to surveillance evidence, had a post-arrest confession from Gutierrez. Given all of these factors, the court found that the admission of the anonymous witness testimony was harmless beyond a reasonable doubt.

To read the full opinion, please visit:

Panel: Kelly, O'Brien, Matheson

Date of Issued Opinion: August 1, 2014

Docket Numbers: 13-2141

Decided: The District Court's admission of anonymous witness testimony was affirmed.


Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellant.

James R.W. Braun, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellee.

Author: Matheson

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 08/11/2014 07:41 PM     10th Circuit  

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