LANCE M. AFRICK, District Judge.
Before the Court are motions to sever filed by defendants Chukwudi Ofomata
Ofomata, Johnson, George, and Esteves argue that they will suffer prejudice if the Court does not grant a severance. The capital defendants also contend that joint guilt phase and penalty phase hearings will compromise their right to an individualized determination of their guilt or innocence and the sentence they should receive. Because the capital defendants have moved to continue trial, Esteves asserts that a joint trial with the capital defendants will violate his constitutional and statutory rights to a speedy trial.
On August 13, 2019, the Court held an in-chambers conference with counsel for all parties to discuss the pending motions.
For the following reasons, the capital defendants' motions for individual trials at the guilt phase and penalty phase of the proceedings are denied at this time, preserving their right to re-urge their motions at trial; Esteves's motion and Brumfield's request for severance from the capital defendants are granted.
The defendants in this case have been charged in a four-count second superseding indictment
On August 31, 2018, the government filed notices of intent to seek the death penalty against George, Ofomata, and Johnson.
The federal judicial system manifests a preference for joint trials, as they "promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Zafiro v. United States, 506 U.S. 534, 538 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)). Accordingly, "[i]t is the rule, not the exception, `that persons indicted together should be tried together, especially in conspiracy cases.'" United States v. Thomas, 627 F.3d 146, 156 (5th Cir. 2010) (quoting United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993)). Because joint trials enable the jury to "obtain[] a more complete view of all the acts underlying the charges," the jury may "arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant" and "assign fairly the respective responsibilities of each defendant in the sentencing." Buchanan v. Kentucky, 483 U.S. 402, 418 (1987).
However, when a joint trial would prejudice defendants properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure, a district court may sever the defendants' trials pursuant to Federal Rule of Criminal Procedure 14(a).
"[D]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Id. at 538. Instead, a defendant moving for severance bears the burden of showing that "specific and compelling prejudice," of a type against which the trial court cannot protect, would arise if the defendants are tried jointly. Thomas, 627 F.3d at 157 (quoting United States v. Lewis, 476 F.3d 369, 384 (5th Cir. 2007)). Separate trials may be necessary when the risk of prejudice is high, but "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Id. (citing Richardson, 481 U.S. at 211). Defendants moving for severance "must identify specific instances of prejudice unremedied by limiting instructions." Ledezma-Cepeda, 894 F.3d at 690. In conspiracy cases, the Fifth Circuit "generally favor[s] specific instructions over severance." Id.
Ofomata, Johnson, George, and Esteves object to a joint trial on multiple grounds. In their motions to sever, the capital defendants have identified three forms of potential prejudice that would arise in joint guilt phase and penalty phase hearings: (1) problematic Bruton issues that would violate their rights under the Confrontation Clause of the Sixth Amendment; (2) antagonistic defenses among the defendants; and (3) prejudicial spillover effects from evidence introduced against their codefendants. Esteves, who opposes the capital defendants' motions to continue trial, asserts that a joint trial with the capital defendants will violate his right to a speedy trial and his rights under the Confrontation Clause, as well as compromise his right to an individualized determination of his guilt or innocence.
The government has indicated that it intends to introduce statements allegedly made by some of the defendants that are self-incriminatory and, in some instances, also incriminate codefendants in the robbery and death of Trochez. Ofomata, Johnson, George, and Esteves argue that at a joint trial, the introduction of these statements would violate their rights under the Confrontation Clause, pursuant to Bruton v. United States, 391 U.S. 123 (1968). Specifically, these defendants object to statements that George allegedly made to confidential informants ("CIs") after the offense occurred describing George's involvement and the involvement of his codefendants in the robbery and murder.
For the following reasons, based on the record as currently presented, it appears that George's alleged statements to the CIs will not implicate Bruton concerns at a joint trial. Therefore, the Court does not find, at this stage, that the defendants' Bruton concerns warrant a severance. However, the defendants may reurge their Bruton arguments, if appropriate, at trial.
The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to be confronted with the witnesses against him. U.S. Const. amend. VI. This right includes the opportunity to cross-examine the witness. Richardson, 481 U.S. at 206. In Bruton v. United States, the United States Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when the statements of a non-testifying codefendant naming the defendant as a participant in the crime are introduced at their joint trial. 391 U.S. at 125-26. These statements are inadmissible even if the jury is instructed to consider them only against the codefendant who made the statements. Id. at 137.
The Bruton doctrine is limited to statements that expressly implicate the defendant through direct reference. United States v. Nanda, 867 F.3d 522, 527 (5th Cir. 2017), cert. denied, 138 S.Ct. 1578 (2018) (citing Richardson, 481 U.S. at 208). Under a "narrow exception" to Bruton, an inculpatory confession by a codefendant may be admissible at trial if it: (1) has been redacted to remove the defendant's name; (2) is not "incriminating on its face"; and (3) becomes incriminating "only when linked with evidence introduced later at trial." United States v. Gibson, 875 F.3d 179, 194 (5th Cir. 2017) (citing Richardson, 481 U.S. at 207-08); see Gray v. Maryland, 523 U.S. 185, 195 (1998) ("Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially."). However, merely substituting blank spaces or other deletions for references to the defendant is insufficient. The Supreme Court explained in Gray v. Maryland that redacted confessions are "facially incriminat[ing]" and violate Bruton if they include "statements that, despite redaction, obviously refer directly to someone, often obviously to [the defendant], and involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." 523 U.S. at 196.
Interpreting Richardson in the context of Bruton, the Fifth Circuit has explained that "[a]dmitting into evidence admissions of a non-testifying co-defendant that only implicate the defendant when added to other trial evidence is not a Bruton violation." United States v. Dickerson, 909 F.3d 118, 126 (5th Cir. 2018). To guard against potential prejudice from the confession, the court should instruct the jury to consider the statement only against the declarant-codefendant. Richardson, 481 U.S. at 206.
Significantly, Bruton's protective scope is limited to statements that are "testimonial" in nature. In Crawford v. Washington, the Supreme Court concluded that the Confrontation Clause only applies to "testimonial" statements; it does not bar the admission of out-of-court statements that are nontestimonial. 541 U.S. 36, 59 (2004); see Whorton v. Bockting, 549 U.S. 406, 412 (2007) (affirming that the Confrontation Clause does not apply to nontestimonial out-of-court statements); United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005) (holding that Crawford is not applicable to nontestimonial hearsay statements). Testimonial statements are inadmissible when the declarant is unavailable to testify and the defendant has not had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54. Accordingly, every circuit court of appeals that has considered the issue has concluded that the Bruton doctrine is limited to testimonial statements. Lucero v. Holland, 902 F.3d 979, 989 (9th Cir. 2018) (collecting cases); see United States v. Vasquez, 766 F.3d 373, 378-79 (5th Cir. 2014).
While the Supreme Court left open the precise definition of a "testimonial" statement, the Court delineated that it includes, at a minimum, police interrogations and prior testimony at a preliminary hearing, grand jury, or trial. Crawford, 541 U.S. at 68 n.10.
Statements are testimonial and, therefore, barred by the Confrontation Clause when their "primary purpose" is to "establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006). The "primary purpose" determination requires courts to "objectively evaluate the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs." Bryant, 562 U.S. at 370. If the purpose of an encounter was to "create a record for trial" or an "out-of-court substitute for trial testimony," the statements made in the context of the encounter are testimonial and thereby inadmissible pursuant to the Confrontation Clause. United States v. Polidore, 690 F.3d 705, 711 (5th Cir. 2012) (citing Bryant, 562 U.S. at 358-59). "Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." Bryant, 562 U.S. at 359.
The primary statements at issue are inculpatory statements allegedly made by George to CIs describing his role and the involvement of codefendants in the robbery and murder of Trochez.
According to the government, these statements were neither made directly to any law enforcement official nor the product of any interrogation or formal proceeding.
Based on the record presented, it appears that the statements between George and the CIs are nontestimonial and, therefore, fall outside of the Bruton rule and the limiting bar of the Confrontation Clause as enunciated in Crawford. As the parties have represented to the Court, George made these statements to his acquaintances in an informal setting.
The Bruton analysis, however, does not end the inquiry as to the admissibility of George's statements to the CIs. As previously stated, when the primary purpose of an out-of-court statement is nontestimonial, "the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." Clark, 135 S. Ct. at 2180 (quoting Bryant, 562 U.S. at 359).
The government must establish a proper evidentiary foundation to support the admission of any such statements at trial. However, because it appears, based on the present record, that the alleged statements are nontestimonial and may, therefore, be admissible notwithstanding the Confrontation Clause, the introduction of these statements does not warrant a severance based on Bruton concerns at this time.
As an additional basis for severance, the capital defendants claim that their codefendants will present antagonistic defenses that will prejudice them at a joint trial and turn each codefendant into a "second prosecutor" of the others.
For example, Johnson has indicated that he intends to present an alibi defense that may be undercut by George's statements to the CIs, if they are admitted, alleging Johnson's presence at the robbery.
The Supreme Court has held that "[m]utually antagonistic defenses are not prejudicial per se," and it has refused to adopt a bright-line rule mandating severance when codefendants present defenses that conflict. Zafiro, 506 U.S. at 534, 538. To serve as a basis to compel severance, the joint defendants must demonstrate that the defenses are "so diametrically opposed that `the jury, in order to believe the core of testimony offered on behalf of [one] defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant.'" United States v. Daniels, 281 F.3d 168, 177 (5th Cir. 2002) (quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B 1981)). Under this "stringent standard," the conflict must concern the "core or essence of a defense, not merely `minor or peripheral matters.'" Id.
Even if such a conflict between defenses is present, the "public interest in judicial economy and the administration of justice" may outweigh the need for severance when the court gives limiting instructions to the jury to cure any risk of prejudice. Id. (citing Zafiro, 506 U.S. at 539). The court may remedy potential prejudice from codefendants' accusations against each other by instructing the jury that it must consider the evidence as to each defendant separately and individually and that each defendant is entitled to have his case determined by his own conduct and the evidence applicable to him. See Zafiro, 506 U.S. at 938; United States v. Warren, 728 F. App'x 249, 256 (5th Cir. 2018), cert. denied sub nom. Thi Houng Le v. United States, 139 S.Ct. 158 (2018).
Based on the present record, the Court finds that the capital defendants' claims of mutually antagonistic defenses do not rise to the level of an irreconcilable conflict that would compel severance. While the capital defendants may present conflicting accounts of their involvement (or lack thereof) in the offense, the jury may believe some, all, or none of them. Although Ofomata contends that the government will portray him as the shooter who killed Trochez,
Unlike other cases in which a court granted a severance based on irreconcilable defenses, each capital defendant here may claim his innocence without mandating the conviction of a codefendant. The capital defendants cite United States v. Green to support their antagonistic defense argument, but the circumstances of that case are distinguishable. 324 F.Supp.2d 311 (D. Mass. 2004).
In Green, the district court severed the trials of two capital codefendants because ballistics evidence suggested that there was only one shooter who committed a murder in aid of racketeering, creating a "zero sum game" among the codefendants' mutually exclusive defenses that the other man committed the crime. Id. at 324. By contrast, here, the government alleges that all three capital defendants shot at Trochez and have equal degrees of culpability.
The capital defendants in this case have also failed to specifically identify the irreconcilable and mutually exclusive nature of their anticipated defenses. "[V]ague and conclusory allegations" of conflicting defense theories are insufficient to support a motion to sever. Daniels, 281 F.3d at 178. For example, courts have found that an alibi defense, even if it may be antagonistic to some degree, does not warrant a severance when it is not irreconcilable or mutually exclusive with codefendants' defenses. See Collins v. Runnels, 603 F.3d 1127, 1129 (9th Cir. 2010); Campbell v. Ward, 315 F. App'x 82, 86 (10th Cir. 2009); United States v. Carter, 760 F.2d 1568, 1575-76 (11th Cir. 1985).
Here, the capital defendants have only presented general allegations of conflicting defenses without specifying how the jury's acceptance of one defense precludes the possibility of acquittal of a codefendant.
The defendants also argue that a joint trial will result in prejudicial "spillover effects" from evidence introduced against their codefendants. Ofomata claims, contradicted by the government, that the only direct evidence the government has against him consists of the alleged statements by George to CIs implicating Ofomata in the robbery and murder,
A "`spillover effect'—whereby the jury imputes the defendant's guilt based on evidence presented against his co-defendants—is an insufficient predicate for a motion to sever." United States v. Chapman, 851 F.3d 363, 379 (5th Cir. 2017) (quoting United States v. Snarr, 704 F.3d 368, 397 (5th Cir. 2013)). "A defendant is not entitled to severance just because it would increase his chance of acquittal or because evidence is introduced that is admissible against certain defendants." Burton v. United States, 237 F.3d 490, 495 (5th Cir. 2000) (citing Zafiro, 506 U.S. at 540)). Broad complaints of the "volume of evidence, the disparity of evidence between defendants, and a generalized spillover effect" do not warrant severance. Chapman, 851 F.3d at 380. Instead, the defendant must identify "specific and compelling" prejudice against him that would result from evidence introduced against his codefendants. See id.
While separate trials may be necessary when codefendants face a high degree of potential prejudice, "less drastic measures, such as limiting instructions, often will suffice to cure the risk of prejudice." Zafiro, 506 U.S. at 539. As the Fifth Circuit has explained, "[i]f the jury can keep separate the evidence that is relevant to each defendant, even if the task is difficult, and render a fair and impartial verdict as to each defendant, a severance should not be granted." United States v. Ramirez, 145 F.3d 345, 355 (5th Cir. 1998) (citing United States v. Walters, 87 F.3d 663, 670-71 (5th Cir. 1996)).
As explained previously, the Court will take prophylactic measures to guard against prejudice to individual defendants from the evidence introduced against their codefendants. In particular, instructions to the jury that they must consider the evidence against each defendant separately and individually will alleviate the risk of prejudice.
The Court is mindful of each defendant's right to an individualized determination of his guilt or innocence by the jury. The Fifth Circuit has made clear, however, that a "quantitative disparity in evidence is `clearly insufficient in itself to justify severance.'" Neal, 27 F.3d at 1045 (quoting United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.), cert. denied, 474 U.S. 1034 (1985)). Furthermore, "[w]hile the district court must guard against undue prejudice, it need not protect conspirators from evidence of their confederates' acts in furtherance of their common illegal aim." United States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir. 1998) (quoting United States v. Manges, 110 F.3d 1162, 1174-75 (5th Cir. 1997)).
Based on the present record, the Court finds that the spillover prejudice that the defendants allege will arise from a joint trial does not warrant severance at the guilt phase.
The Court has concerns, however, about the prejudice that may arise from a joint penalty hearing for the capital defendants, should that phase occur. For example, the government has indicated that it intends to introduce evidence during the penalty phase that George committed an armed bank robbery in 2007 and that Ofomata murdered two people in 2008.
At a joint penalty hearing, the jury compares each defendant's culpability with that of his codefendants. See 18 U.S.C. § 3592(a)(4) (requiring a juror to consider, as a mitigating factor for the death penalty, whether "[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death"). The Supreme Court has emphasized that the imposition of the death penalty requires an "individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant v. Stephens, 462 U.S. 862, 879 (1983). The jury "must be allowed to consider a defendant's moral culpability and decide whether death is an appropriate punishment for that individual in light of his personal history and characteristics and the circumstances of the offense." Abdul-Kabir v. Quarterman, 550 U.S. 233, 263-64 (2007). Because capital cases call for a "greater degree of reliability when the death sentence is imposed," the Supreme Court has emphasized that "an individualized decision is essential." Lockett v. Ohio, 438 U.S. 596, 604-05 (1978).
A penalty hearing in which the jury hears evidence against all three capital defendants in one proceeding may pose a high risk of compromising the defendants' right to an individualized sentencing determination. There are numerous concerns that must be weighed. For example, the government has indicated its intent to introduce evidence of other alleged criminal offenses by George and Ofomata, but not by Johnson, at the penalty phase.
Although the Court will instruct the jury to consider the mitigating and aggravating factors against each defendant individually, the Court finds that the risk of prejudice in a joint penalty hearing may outweigh the benefits of judicial economy.
In this case, the Court has granted four continuances of trial since the defendants were indicted on November 2, 2017. Originally scheduled for January 8, 2018, trial was continued to July 9, 2018, October 9, 2018, January 28, 2019, and November 4, 2019.
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. While this constitutional right cannot be quantified into a specific number of days or months, the Supreme Court has established a four-factor balancing test to evaluate a defendant's constitutional speedy trial claim. Vermont v. Brillon, 556 U.S. 81, 89 (2009) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). These factors are: the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530.
The first factor, the length of the delay, serves as a "screening device" for a full speedy trial analysis under Barker. Amos v. Thornton, 646 F.3d 199, 205 (5th Cir. 2011) (quoting Nelson v. Hargett, 989 F.3d 847, 851 (5th Cir. 1993)). "If the delay reaches the threshold level of one year, it is `presumptively prejudicial' and requires the court to engage in the speedy trial analysis, balancing the remaining [Barker] factors." United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002) (citing Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993)). "[T]he presumption that pretrial delay has prejudiced the accused intensifies over time." Doggett v. United States, 505 U.S. 647, 652 (1992).
To overcome the presumption of prejudice, the government must show "that the presumption is extenuated . . . or rebut[] the presumption with evidence." United States v. Frye, 489 F.3d 201, 209 (5th Cir. 2007) (citations omitted). If the Barker factors "do not weigh so heavily as to justify a presumption of prejudice, then the defendant bears the burden of both establishing actual prejudice and demonstrating that such prejudice is sufficient to outweigh the other three factors." Id. (citing United States v. Serna-Villareal, 352 F.3d 225, 230 (5th Cir. 2003)).
With respect to the prejudice factor, the Supreme Court has identified three interests that the Sixth Amendment was designed to protect: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532.
Under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., which protects the constitutional right to a speedy trial, a defendant's trial must commence within seventy days of his indictment or initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1); see United States v. Stephens, 489 F.3d 647, 652 (5th Cir. 2007). Section 3161(h) provides for exclusions from the time calculation within which trial must commence. Such exclusions include continuances granted by the court for the "ends of justice" and delays attributable to a codefendant for whom the time for trial has not run and no motion for severance has been granted. See Stephens, 489 F.3d at 652 (citing 18 U.S.C. § 3161(h)).
Delays under the Speedy Trial Act are subject to a "reasonableness inquiry," which examines both the "totality of the circumstances of the case prior to trial" and the "actual prejudice suffered by the [defendant] as a result of the [Section 3161(h)(7)] exclusion." United States v. Bieganowski, 313 F.3d 264, 283 (5th Cir. 2002) (quoting United States v. Franklin, 148 F.3d 451, 457 (5th Cir. 1998)). Such prejudice may include excessive pretrial incarceration or impairment of the defendant's ability to defend himself. Id. (citing Franklin, 148 F.3d at 457). In a case with codefendants, courts must weigh these considerations against the "efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial." Id. (quoting Franklin, 148 F.3d at 457).
Weighing the Barker factors and the reasonableness of delay for the purpose of trying the capital and non-capital defendants jointly, the Court finds that an additional delay of Esteves's trial in order to have Esteves tried with the capital defendants would violate his speedy trial rights under the Sixth Amendment and the Speedy Trial Act.
Esteves has been detained since November 13, 2017.
Under Barker, the length of delay, the reasons for the delay, and Esteves's assertion of his right to a speedy trial weigh toward a presumption of prejudice, which the government has not effectively rebutted. With respect to the second Barker factor, the reasons for the delay do not weigh against Esteves.
The government has also not presented any evidence to rebut the presumption of prejudice against Esteves's constitutional right to a speedy trial. The government's argument against severance on speedy trial grounds refers to the Court's December 2018 order denying Esteves's first motion for severance,
Under the Speedy Trial Act, the "totality of the circumstances prior to trial" and the "actual prejudice suffered" by Esteves also support the conclusion that additional delay would not be reasonable. See Franklin, 148 F.3d at 457. A joint trial with the capital defendants on September 14, 2020 would extend Esteves's pretrial incarceration by ten months. While a continuance is warranted for the capital defendants to adequately prepare their defenses against the death penalty, Esteves was prepared to go to trial as early as January 28, 2019.
Therefore, the Court finds that considerations with respect to Esteves's right to a speedy trial under the Sixth Amendment and the Speedy Trial Act warrant a trial for Esteves on the presently scheduled trial date of November 4, 2019. Brumfield has requested to be tried with Esteves on November 4, 2019.
Accordingly,
Rule 14(a) provides for severance of defendants:
Crawford, 541 U.S. at 51-52 (citations omitted).
614 F.3d at 956.
As the court explained in United States v. Aquart, severance is warranted when "the defenses mounted require[] the conviction of at least one defendant," but not when "the jury could . . . acquit[] any number of defendants despite their contradictory defenses." No. 3:06CR160, 2010 WL 3211074, at *6 (D. Conn. Aug. 13, 2010). Other courts have also found that general allegations by a defendant to pin the crime on a codefendant do not necessitate severance. See United States v. Gray, 292 F.Supp.2d 71, 87-88 (D.D.C. 2003) (finding that the defendants' assertions of "some form of an `it wasn't me' defense" did not constitute an irreconcilable conflict that warranted severance) aff'd sub nom. United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011); United States v. Villegas, 899 F.2d 1324, 1346 (2d Cir. 1990) ("The mere fact that codefendants seek to place the blame on each other is not the sort of antagonism that requires a severance.") (citing United States v. Casamento, 887 F.2d 1141, 1154 (2d Cir. 1989)).
The government has informed the Court that it will not present evidence of alleged prior crimes by George and Ofomata during the guilt phase; it will only introduce this evidence at the penalty phase, if that phase occurs. Based on this attestation by the government, the Court notes that Johnson's argument as to the prejudicial effect of introducing evidence of the criminal histories of George and Ofomata at a joint trial is moot with respect to the guilt phase.
Additional measures that the Fifth Circuit has approved include: (1) providing limiting instructions to both potential jurors during voir dire and empaneled jurors during trial, (2) allowing the jurors to take notes, and (3) allowing the jurors to consult photographs of the defendants during trial. See United States v. Jones, 303 F.R.D. 279, 287 (E.D. La. 2014) (Morgan, J.) (citing United States v. Posado-Rios, 158 F.3d 832, 863-64) (5th Cir. 1998)).
