EDWARD C. PRADO, Circuit Judge:
Defendant-Appellant Sandra Lisseth Ceballos appeals her conviction for transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States for private financial gain. She alleges a violation of her Sixth Amendment right of confrontation, the erroneous admission of evidence necessary to prove the financial-gain element of the offenses charged, and cumulative error that deprived her of a fair trial. We affirm.
On December 18, 2012, Customs and Border Protection (CBP) agents in El Paso discovered Abel Viera Mendez (Viera), a Mexican national, attempting to enter the United States without authorization.
On learning that Viera had also arranged for transport within the United States, the agents set up a sting operation. With Viera's consent, one of the agents, Humberto Torres, posed as Viera and answered a call on Viera's cell phone from the suspected smuggler — a Spanish-speaking male — and requested a ride. Agent Torres gave the smuggler a meeting location, and the smuggler told Agent Torres that a gray, four-door Mitsubishi with tinted windows would pick him up. Once at the designated site, Agent Torres continued to pose as Viera while fellow agents Brendan McCarthy and Orlando Marrero-Rubio set up surveillance. Agent Torres also surreptitiously initiated a phone call with Agent McCarthy, enabling Agent McCarthy to hear Agent Torres's activity.
Shortly after Agent Torres's conversation with the smuggler, Ceballos arrived at the location in a vehicle matching the smuggler's description. Ceballos, who was speaking on a cell phone, asked the person on the line, "What was his name?" She then asked Agent Torres whether he was "Abel." After Agent Torres replied in the affirmative and confirmed that Ceballos was aware of "Abel's" immigration status, Ceballos invited Agent Torres into the vehicle. At this time, Agent Torres dropped his cell phone, a coded signal to Agents McCarthy and Marrero-Rubio to apprehend Ceballos. The agents separately placed both Ceballos and Agent Torres, still posing as Viera, under arrest.
The agents issued Ceballos her Miranda warnings, and before invoking her right to counsel, Ceballos indicated that she had been at the location either to pick up her ex-husband José or to collect child support from him.
Following Ceballos's arrest, the agents inventoried the contents of the vehicle and discovered two cell phones as well as a notebook in Ceballos's purse that contained dates, the names "Enrique" and "José," references to "girl[s]," "guy[s]," and a "couple," dollar amounts, and notations in Spanish and English signifying "pick up," "deliver," and "food." There were no entries in the notebook dated December 18, 2012, but there was one entry dated December 16, 2012. Agent
Ceballos was indicted for (1) conspiracy to transport aliens within the United States for private financial gain and (2) transporting and attempting to transport an alien within the United States for private financial gain.
We have jurisdiction to review the district court's final judgment of conviction under 28 U.S.C. § 1291.
Ceballos raises three challenges to the evidence presented at her trial. First, she contends that the admission of Viera's testimony — both through Viera's sworn, written statement and through the testimony of CBP agents — violated her Sixth Amendment right of confrontation. Second, she avers that the notebook in her purse, which the Government alleged was a smuggling ledger, was inadequately authenticated and constituted inadmissible evidence of prior bad acts under Federal Rule of Evidence 404(b). Third, she claims cumulative error in inappropriate Government witness testimony, alleged pro-prosecution statements by the trial judge, and improper closing argument by the Government. We discuss each asserted error in turn.
Ceballos first argues that the district court violated her Sixth Amendment rights by admitting Viera's testimony into evidence without first establishing that he was unavailable and that Ceballos had a prior adequate opportunity to cross-examine him. As Ceballos failed to object to the testimony at trial, our review would ordinarily be for plain error. United States v. Vasquez, 766 F.3d 373, 378 (5th Cir.2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1453, 191 L.Ed.2d 404 (2015). However, because we conclude that Ceballos waived her right of confrontation through her counsel's unchallenged stipulation to the admission of the testimony, her claim is "entirely unreviewable," United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.1995); see United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ("Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." (internal quotation marks omitted)).
The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant to confront the witnesses against her. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Specifically, the Clause bars the introduction of testimonial evidence against a criminal defendant unless the proponent shows both that the
Prior to trial, the Government moved to have Viera, "a material witness," declared unavailable so that it would be able to introduce Viera's videotaped deposition into evidence at trial. At a pretrial conference, however, the Government withdrew its motion and also expressed its intention not to call Viera as a live witness. The Government explained that Viera's testimony "is not essential to our case" but observed that defense counsel Fernando Chacon had intimated that he may make "an effort ... to offer some or all of the videotaped deposition." Defense counsel made no remarks at this time.
The court then asked whether the parties had agreed on exhibits to be admitted. The Government stated that it had shared its eleven proposed exhibits with defense counsel and the court, and that "the defense doesn't have a problem with most of them, although they do oppose the ledger, which is Government's Exhibit Number 6." After a discussion of Ceballos's motion in limine to exclude the ledger, the court asked: "[A]s to everything else ... you are in agreement as to the admissibility of the government's exhibits under those exhibit numbers?" Defense counsel responded affirmatively. The court then admitted all exhibits except Government's Exhibit 6 (the ledger) and Defendant's Exhibit 1 (Ceballos's cell phone records).
In response to a question from the court regarding "any major evidentiary issues" outstanding before trial, the Government advised the court that although defense counsel had raised no objection to several of the exhibits, Government's Exhibits 4, 5, 7, and 8 were "all documents from the ... alien file" of Viera, "the material witness in this case." Exhibit 8 was Viera's sworn statement. Defense counsel explained that he had no objection to the admissibility of those exhibits, but he conditioned his agreement to admit the exhibits on the opportunity to cross-examine their proponents. The court expressed its understanding of defense counsel's position but made no indication that its ruling admitting the evidence had changed. Neither party identified any further issues for discussion.
During trial, the Government questioned Agent McCarthy regarding the subject matter of what Viera had told him following his apprehension. Additionally, at the Government's request, Agent McCarthy recited Viera's written statement. Although Ceballos did not object to either form of testimony, she did cross-examine each of the CBP agents who served as a proponent of the stipulated evidence.
We hold that Ceballos effectively waived her right of confrontation. The record does not reflect, and Ceballos does not allege,
We note that this case is distinct from Stephens in one important respect: the record before us does not reflect whether Ceballos personally assented to the stipulation. In Stephens, our foundational case on the waiver of the right of confrontation, the trial court questioned the defendants in detail about their understanding of the arrangement and its possible implications for their defense before it accepted the stipulation. 609 F.2d at 233. We placed notable emphasis on this fact: "Our reading of the record convinces us that both [defendants], with full knowledge of the implications, consented to the stipulation. There is no evidence that they expressed any reservations to their attorney prior to their appearance before the district judge." Id.; see also United States v. Adams, 439 Fed.Appx. 340, 342 (5th Cir. 2011) (per curiam) (holding that defendant waived his confrontation right when he "was made aware of the issues surrounding the witness's availability" and "participated in his attorney's decision to admit [the witness's] written statement in lieu of her in-court testimony").
Here, by contrast, the district court never confirmed that Ceballos had assented to the stipulation — in fact, it is unclear whether Ceballos was even present for the pretrial conference. Further, as defense counsel made no contemporaneous confrontation objection at trial, the judge had no occasion to present Ceballos with the stipulation.
Nevertheless, we are not convinced that the facts of this case compel a different result. Indeed, this Court has found a valid waiver of the right of confrontation without evidence that the defendant himself expressed agreement with the stipulation. See United States v. Reveles, 190 F.3d 678, 683 (5th Cir.1999), abrogated on other grounds by United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir.2014) (en banc). In Reveles, the government announced during a pretrial proceeding that it intended to introduce an incriminating written statement by a co-defendant. Id. The government offered to introduce a redacted version of the statement, but defense counsel replied that this was "unnecessary" and affirmed that "he would not make any Bruton objection." Id. When the government attempted to clarify the agreement for the record — "I want to make it clear in case [the declarant] changes his mind and doesn't testify," government counsel said — defense counsel interjected,
We rejected this contention and held that the defendant had effectively waived his right of confrontation, precluding even plain-error review of the evidentiary ruling. Id. at 683 & n. 6. In addition to counsel's concession of waiver at oral argument, we noted that the defendant "did not object to his attorney's decision" at trial, "he d[id] not provide [this Court] with any argument as to why the waiver could not have been a `legitimate trial tactic or part of a prudent trial strategy,'" and he did not "call[ ] [his attorney's] intentions into question" on appeal. Id. at 683 n. 6. We concluded: "When a defendant has waived a right, the district court cannot be said to have erred by failing to override the intentions of the defendant's counsel by asserting the right sua sponte." Id. at 683 (emphasis added) (citing Olano, 507 U.S. at 733, 113 S.Ct. 1770).
Our reasoning in Reveles suggests that a permissible waiver of the right of confrontation is not contingent on evidence that the defendant affirmatively agreed to counsel's stipulation; she just must not dissent from that decision. The opinions of our fellow circuits are in accord. See United States v. Plitman, 194 F.3d 59, 64 (2d Cir.1999) (rejecting the argument that "a defendant in every instance personally must waive the right to confront the witnesses against him" and holding, together with the majority of circuits, that "defense counsel may waive a defendant's Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound").
Ceballos conceded at oral argument that Stephens applies to her case and binds us under the Fifth Circuit's rule of orderliness, but she urged this Court to reconsider Stephens in light of the Supreme Court's intervening opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. See Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.2008) ("It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court."). In Ceballos's view, Crawford elevated the admission of testimonial hearsay from an evidentiary issue to one of constitutional significance, rendering the right of confrontation personal in nature and not susceptible of waiver by counsel.
Ceballos is correct that Crawford set forth the constitutional requisites of confrontation and rejected the notion that "the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence." 541 U.S. at 61, 124 S.Ct. 1354. But her position rests on two flawed premises: first, that Stephens enunciated an evidentiary holding rather than a constitutional one; and second, that Crawford effected a change in the law governing waiver of the right of confrontation. In fact, Stephens expressly held that "counsel in a criminal case may waive his client's Sixth Amendment right of confrontation by stipulating to the admission of evidence." 609 F.2d at 232 (emphasis added). Notably, in reaching this conclusion, we cited the Supreme Court's opinions in Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), and Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). Stephens, 609 F.2d at 232. The Court has never overruled either of these cases, and we see no indication that Crawford achieved this object sub silentio.
In sum, as Ceballos waived her confrontation objection to the admission of Viera's testimony, she cannot now argue that this amounted to error. See Musquiz, 45 F.3d at 931.
Ceballos next contends that the district court reversibly erred in admitting the notebook found in her purse, which the Government presented to the jury as a smuggling ledger. Ceballos maintains that the notebook was not properly authenticated under Federal Rule of Evidence 901, and that it contained evidence of bad acts extrinsic to the charged offenses, in violation of Federal Rule of Evidence 404(b).
Although Ceballos filed a pretrial motion in limine to exclude the notebook on relevance, undue prejudice, "other acts," and hearsay grounds, the Court withheld a ruling on admissibility until trial, and Ceballos objected at trial only to the item's authenticity. Thus, we review the authentication issue for abuse of discretion, subject to a harmless-error analysis, see United States v. El-Mezain, 664 F.3d 467, 494 (5th Cir.2011), but we review the Rule 404(b) issue for plain error, see United States v. Graves, 5 F.3d 1546, 1551 (5th Cir.1993). To establish plain error, Ceballos has the burden of proving (1) an error (2) that was "clear or obvious, rather than subject to reasonable dispute" and (3) that affected her "substantial rights." Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If she makes these showings, we may use our discretion to remedy the error, but "only if [4] the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation marks omitted). "Meeting all four prongs is difficult, as it should be." Id. (internal quotation marks omitted).
Authentication of a document is a condition precedent to its admission. See Fed.R.Evid. 901(a). "Rule 901(a) `merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be.'" United States v. Isiwele, 635 F.3d 196, 200 (5th Cir.2011) (quoting United States v. Watkins, 591 F.3d 780, 787 (5th Cir.2009)). Testimony by a witness with knowledge of the item, the item's own distinctive characteristics, and the circumstances
Significantly, "[t]his Court does not require conclusive proof of authenticity before allowing the admission of disputed evidence." United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989). Rather, once the proponent has made the requisite preliminary showing of authenticity, the evidence should be admitted, as "[t]he ultimate responsibility for determining whether evidence is what its proponent says it is rests with the jury." Barlow, 568 F.3d at 220. Assuming this threshold is met, alleged flaws in authentication "go to the weight of the evidence instead of its admissibility." Isiwele, 635 F.3d at 200 (internal quotation marks omitted). Correspondingly, we have recognized that "[t]he standard for authentication is not a burdensome one," United States v. Jackson, 636 F.3d 687, 693 (5th Cir.2011), and we have characterized the proponent's burden as "low," United States v. Lundy, 676 F.3d 444, 453-54 (5th Cir.2012).
While we have yet to confront circumstances identical to those at bar, this Court has upheld a finding of authenticity based on evidence that a writing with contents broadly corroborative of the offense charged was discovered in the defendant's exclusive possession. In United States v. Wake, the defendant, on trial for possession of narcotics with intent to distribute, challenged the authentication of items seized from his wallet, his office, and his car. 948 F.2d 1422, 1425, 1434 (5th Cir. 1991). The items included "a sheet with names, code numbers, and telephone numbers"; "a series of tally sheets ... contain[ing] code numbers, numbers representing quantities of drugs, and amounts of money"; and "notebook pages ... contain[ing] such statements as `Have guns out of house', `throw out calendar sheets', `What if Mitch or Doug turns me in', and `can I be indicted'." Id. at 1434. The Government authenticated the writings through the testimony of a DEA agent who participated in the criminal investigation. Id. The agent "testified as to the circumstances under which each writing was seized from the property or physical possession" of the defendant. Id. We found "no error, much less the requisite abuse of discretion," in the district court's admission of the exhibits. Id. at 1435. To this end, we noted that authentication may be achieved through circumstantial evidence alone, that the contents of documents may be used to establish the identity of the declarant, and that handwriting analysis is not a prerequisite to authentication. Id. at 1434-35.
We, and our colleagues in other circuits, have also found evidence of ledgers maintained in furtherance of conspiracies to be adequately authenticated by their distinctive contents and the circumstances of their discovery — at least when the proponent offers the testimony of a participant in the conspiracy or a witness familiar with its operations. See United States v. Arce, 997 F.2d 1123, 1127-28 (5th Cir.1993) (holding that records were properly authenticated as drug ledgers maintained by a co-conspirator based on evidence that the records were recovered from the co-conspirator's home, testimony of a witness as to the handwriting on the ledgers and the similarity of the ledgers to others maintained by the co-conspirator, and evidence that notations in the ledgers corresponded to known transactions); United States v. De Gudino, 722 F.2d 1351, 1355-56 (7th Cir.1983) (holding that records were properly authenticated as the ledgers of a human-smuggling ring based on evidence that the records were seized from its "headquarters" and on "testimony outlining
Here, the Government sought to introduce the notebook as a ledger recording Ceballos's smuggling activities. In the hearing on Ceballos's motion in limine, Government counsel made a proffer of the foundational testimony he expected to elicit. Noting that "the Border Patrol officers that are involved in this case have wide experience with alien smuggling organizations," counsel declared that he "plan[ned] on eliciting some testimony that this looks like to them [it] could ... possibly be a ledger, a record of alien smuggling activities." After recounting the facts of the notebook's discovery, counsel described some of the contents of the notebook and tied them to the Government's theory of the case. Counsel cited the notation "Enrique owes me $25" and observed that Ceballos's cell phone records reflected that she was engaged in a call with a contact named Enrique at the time Agent Torres approached Ceballos's car and presented himself as Viera. Counsel also pointed to the reference to "José" and remarked that Ceballos's phone records revealed calls with a contact named "José ex" on the day of her arrest. In addition, counsel indicated that he saw the authorship of the notations as immaterial:
Notably, the record reflects that the district court was able to examine a copy of the notebook during the hearing.
At trial, the Government offered as foundation the testimony of Agent Amaya, who handled Ceballos's possessions following her arrest. Eliminating the testimony to which Ceballos timely objected, the following relevant evidence was before the district court at the time it ruled to admit the notebook. Agent Amaya discovered a notepad in Ceballos's purse. The purse also contained identifying documents, including pay stubs bearing Ceballos's name. The notebook "appeared to be a ledger." Agent Amaya was looking for items with "evidentiary value," including "notes that can be in names, telephone numbers, any kind of evidence ... that can prove that... maybe she was a pick-up driver and she's involved in the smuggling scheme." Names and dollar amounts would be particularly important to this task. Agent Amaya referred Ceballos's notebook to a field intelligence agent, and made copies of the notebook for evidence, because he thought it "was noteworthy." There was no
Although the issue is close, we cannot say that the district court abused its discretion in finding the notebook properly authenticated. The Government did not need to adduce "conclusive proof of authenticity," Jimenez Lopez, 873 F.2d at 772; it needed only "evidence sufficient to support a finding that the item [was] what [it] claim[ed]," Fed.R.Evid. 901(a) — a ledger recording smuggling activity in which Ceballos was involved. Here, as in Wake and Arce, the evidence was found in the defendant's exclusive possession: the notebook was recovered from Ceballos's purse, which was inside her car at the time of her arrest. In addition, the contents of the notebook, which the court was able to examine at the motion in limine hearing, provide some corroboration of the alleged criminal activity. The notebook includes references to money owed to individuals named "José" and "Enrique," both the names of contacts in Ceballos's phone and both the subjects of calls with Ceballos around the time of her arrest. It lists "guy" and "girl" next to individual dollar amounts and days of the week, and it contains notations such as "pick up," "deliver," "food," and "bring her," also alongside dollar amounts.
While these notations are not as distinctive — or as self-evidently inculpatory — as those in Wake, and the Government did not offer testimony from the author of the notebook or from any co-conspirator, as in Arce and De Gudino, the contents of the notebook are generally consistent with a ledger recording smuggling activity. Indeed, despite omitting any explicit reference to the substance of the writings, Agent Amaya's foundational testimony supports this characterization. That the Government neglected to present handwriting analysis is not dispositive; not only has this Court disclaimed the notion that such evidence is a prerequisite to authenticating a writing, Wake, 948 F.2d at 1435, but as the Government expressed at the motion-in-limine hearing, Ceballos's possession of the notebook, and its potential corroboration of smuggling activity, render the authorship of the writing less important than Ceballos maintains. Further, we are mindful of the principle that once the proponent has made a preliminary showing of authenticity, "[t]he ultimate responsibility for determining whether evidence is what its proponent says it is rests with the jury." Barlow, 568 F.3d at 220. After the notebook was admitted, Ceballos was able to present competing evidence that the notebook was in fact a personal ledger documenting innocuous matters — bills, reminders, and notes from conversations — and it was the province of the jury to credit one account over the other.
In view of the deferential abuse-of-discretion standard and the "low" burden of authentication, Lundy, 676 F.3d at 453, we see no reversible error in the district court's finding of authenticity.
Evidence pertaining to a defendant's uncharged crimes, wrongs, or acts is considered intrinsic to the charged offense and is generally admissible if "it and evidence of the crime charged are inextricably intertwined, or both acts are part of a single criminal episode, or [the uncharged act] was a necessary preliminary to the crime charged." United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007). Such evidence "is admissible to complete the story of the crime by proving the immediate context of events in time and place ... and to evaluate all of the circumstances under which the defendant
By contrast, when evidence of a defendant's uncharged crimes, wrongs, or other acts is extrinsic to the offense, the admission of that evidence is limited under Rule 404(b). See Sumlin, 489 F.3d at 689. Although inadmissible to prove the defendant's character, extrinsic evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R.Evid. 404(b).
Regardless of whether the evidence qualifies as intrinsic or extrinsic, Ceballos has not shown plain error in the admission of the notebook. First, there is a strong basis to conclude that the contested evidence was intrinsic to the charged conspiracy offense. Ceballos was tried for, and convicted of, conspiracy to transport illegal aliens for private financial gain "on or about December 18, 2012." As explained above, the notepad contains writing broadly corroborative of the Government's account of the offense and consistent with a smuggling operation. These notations, which include references to "José" and "Enrique," an accounting of fees and expenses, and obligations to "pick up" and "deliver" subjects, appear "relevant to establish ... how the conspiracy was structured," Watkins, 591 F.3d at 784, and may even evince "[a]cts committed in furtherance of the charged conspiracy," Garcia Abrego, 141 F.3d at 175. Further, at least one page bears a connection to the date listed in the indictment (Tuesday, December 18, 2012): it includes the notations "12-16-12," "M-T-W," and "entre couple Tuesday."
Second, even if the notations refer to bad acts other than those charged, Ceballos cannot show their admission was error that is "clear or obvious, rather than subject to reasonable dispute," Puckett, 556 U.S. at 135, 129 S.Ct. 1423. The acts described in the notebook at least arguably serve a permissible evidentiary purpose under Rule 404(b) — proving intent, preparation, plan, or knowledge, relating to both the conspiracy and the attempt to transport illegal aliens for private financial gain. As a result, Ceballos has not discharged her heavy burden to show plain error, and we hold that the district court did not err in admitting the notebook.
In her final point, Ceballos asserts that the above evidentiary errors, coupled with "three blatant instances of comment upon Ceballos's invocation of her rights" and "improper personal attacks against Ceballos by the prosecutor during closing argument," deprived her of a fair trial.
"Cumulative error justifies reversal only when errors so fatally infect[ed] the trial that they violated the trial's fundamental fairness." United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (en banc) (internal quotation marks omitted). "We have repeatedly emphasized that the cumulative error doctrine necessitates reversal only in rare instances and have previously stated en banc that `the possibility of cumulative error is often acknowledged but practically never found persuasive.'" Id. (footnote omitted)
Ceballos argues that, on three occasions, Government witnesses improperly testified that she invoked her rights to counsel and to remain silent. In particular, she challenges the comments below as violations of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). As Ceballos failed to object in all instances, our review is again for plain error. See United States v. Andaverde-Tinoco, 741 F.3d 509, 518 (5th Cir.2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1912, 188 L.Ed.2d 938 (2014).
During Agent McCarthy's direct testimony, Government counsel asked whether Ceballos told the agent anything during or after her arrest. Agent McCarthy explained that once Ceballos was out of her vehicle, he recited her Miranda rights in Spanish and asked whether she understood her rights and whether she was willing to speak with or without an attorney present. According to Agent McCarthy, after he repeated the question, another agent approached and asked Ceballos whether or not she wanted an attorney. Agent McCarthy testified that Ceballos "answered that, yes, she did want an attorney, then all incriminating questions were stopped."
Defense counsel also questioned Agent McCarthy regarding his initial approach and questioning of Ceballos. Specifically, counsel asked Agent McCarthy whether he asked "[Ceballos] if she wanted to make any statements." Agent McCarthy responded:
At this point, Agent McCarthy placed Ceballos in the CBP vehicle.
Defense counsel questioned Agent Contreras regarding the procedure for determining what information is included in a CBP report, prompting the following exchange:
A defendant's rights are violated when the prosecutor comments on the fact that a defendant has chosen to remain silent following her arrest and receipt of the Miranda warnings. See Doyle, 426 U.S. at 617-18, 96 S.Ct. 2240. "A prosecutor's or witness's remarks constitute comment on a defendant's silence if the manifest intent was to comment on the defendant's silence, or if the character of the remark was such that the jury would naturally and necessarily so construe the remark." United States v. Carter, 953 F.2d 1449, 1464 (5th Cir.1992). "Both the intent of the prosecutor and the character of the remarks are determined by reviewing the context in which they occur, and the burden of proving such intent is on the defendant." United States v. Laury, 985 F.2d 1293, 1303 (5th Cir.1993) (quoting United States v. Shaw, 701 F.2d 367, 381 (5th Cir.1983) (citations omitted)).
Ceballos has not shown any Doyle error that was "clear or obvious," Puckett, 556 U.S. at 135, 129 S.Ct. 1423. In his opening remarks, Ceballos's counsel mentioned multiple times that Ceballos invoked her rights to silence and to counsel. Counsel also commented on Ceballos's defense, including her belief — expressed at the time of her arrest — that she had been set up by her ex-husband in a ploy to avoid his child-support obligations. Accordingly, the Government had reason to question Agent McCarthy regarding Ceballos's statements at the time of her arrest: to test whether Ceballos advised the agents of the misunderstanding and of the plot against her. As a result, we cannot say that Ceballos has discharged her burden, on plain error, to establish that the direct-examination testimony was "manifest[ly] inten[ded]" to comment on her silence or was of such a character as to lead the jury "naturally and necessarily" to so construe it, Carter, 953 F.2d at 1464. See also United States v. Whitaker, 592 F.2d 826, 830 (5th Cir.1979) (finding no Doyle violation where prosecutor intended for the witness to comment on actual statements made by the defendant yet inadvertently caused the witness to comment on the defendant's silence). Further, given the substance of his opening statement, defense counsel at least arguably opened the door to the challenged testimony. See, e.g., United States v. Martinez-Larraga, 517 F.3d 258, 268 (5th Cir.2008) (recognizing an exception to Doyle that permits a prosecutor to reference a defendant's post-Miranda silence in order to respond to some contention of the defendant concerning her post-arrest behavior).
As for the testimony on cross-examination, not only were the objectionable statements elicited by defense counsel rather than by the Government, but they were directly responsive to the questions posed. The question to Agent McCarthy was whether he asked "[Ceballos] if she wanted to make any statements," and the question to Agent Contreras pertained to the process of completing a CBP report — including, critically, how and why the report came to omit Ceballos's statement to Agent McCarthy that she had been at the location to collect child support. In neither case can we say, through the prism of plain error, that the manifest intent of the witness's remarks, or their natural and necessary construction, was to comment on Ceballos's silence in a way that improperly implied her guilt. See Carter, 953 F.2d at 1464.
Ceballos next complains of the following remarks by Government counsel during closing argument:
Ceballos avers that these comments become "suspect" when viewed together with the "opening tone of the case set by the trial judge." In support, she points to statements by the district court, immediately after the jury was impaneled, announcing the court's intention to screen a brief video honoring veterans and extolling the virtues of citizenship. Specifically, the court stated: "[S]o many of the freedoms that we enjoy in this country, and there are many in serving on this bench, I'm reminded every day how wonderful it is to be a citizen of the United States." The court also invited veterans in the courtroom to stand and be recognized, and Ceballos contends that one of the prosecutors rose. Again, Ceballos lodged no objections, so our review is for plain error. See United States v. Reagan, 725 F.3d 471, 492 (5th Cir.2013), cert. denied, ___ U.S. ___, 134 S.Ct. 1514, 188 L.Ed.2d 452 (2014).
"[A] prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence." Id. (internal quotation marks omitted). "Except to the extent the prosecutor bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses." United States v. Alaniz, 726 F.3d 586, 616 (5th Cir.2013) (internal quotation marks omitted).
This Court looks at the challenged "closing argument in the context of the trial as a whole, recognizing that inappropriate prosecutorial comments, standing alone[,] will not justify reversal of a conviction obtained in an otherwise fair proceeding." United States v. Thompson, 482 F.3d 781, 785 (5th Cir.2007) (alterations and internal quotation marks omitted). The ultimate inquiry on review is "whether the prosecutor's remarks cast serious doubt on the correctness of the jury's verdict." Id. (internal quotation marks omitted). To answer this question, we consider "(1) the magnitude of the prejudicial effect of the prosecutor's remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction." Id. (internal quotation marks omitted). We "assume that a jury has the common sense to discount the hyperbole of an advocate, discounting the force of the argument," United States v. Vaccaro, 115 F.3d 1211, 1216 (5th Cir.1997), and we consider whether the argument had some foundation in the record and whether it responded to an argument presented by the defense, see id.
Ceballos has not demonstrated, for purposes of our stringent plain-error review, that the prosecutor's closing remarks were clearly improper — no less that they cast serious doubt on the correctness of the verdict. See Thompson, 482 F.3d at 785. As the Government observes, the defense's summation focused on Ceballos's good character, portraying her as an honest, hardworking legal immigrant with integrity who was an easy target for her ex-husband
Ceballos's argument concerning the "opening tone of the case" is unavailing as well. Not only is the record devoid of evidence to corroborate Ceballos's description of the video and her allegation that a prosecutor received recognition as a veteran, but, as the Government points out, the trial took place one week after Memorial Day — a national holiday commemorating military service. Further, the district judge's remarks followed voir dire, which concluded with the judge's expression of gratitude to the venire panel for their civic service. While we do not condone the district court's decision to air a patriotic video before a criminal trial on charges of transporting illegal aliens for financial gain, we cannot say that this — either alone or in combination with the other alleged improprieties — plainly violated Ceballos's right to a fair trial. See Delgado, 672 F.3d at 344.
As we have rejected each of Ceballos's claims of error, the cumulative-error doctrine has no application to this case. See id.
For the foregoing reasons, we AFFIRM Ceballos's conviction.
Whether the notebook in Ceballos's possession contained inadmissible hearsay is not at issue on appeal: Ceballos has abandoned this claim of error through inadequate briefing. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.2010).
