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United States v. De Gudino

decided: December 19, 1983.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 433 -- Marvin E. Aspen, Judge.

Eschbach, Posner, and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

This is an appeal from the defendants' convictions of conspiracy to transport illegal aliens into and within the United States.*fn1 For the reasons set forth below, we affirm the defendants' convictions.

In the spring and summer of 1981, the Immigration and Naturalization Service ("INS") investigated a smuggling operation that transported undocumented aliens from Tijuana, Mexico, to Los Angeles and then to Chicago. On July 6, 1981, INS Special Agent Hipolita Acosta, using the alias Carlos Ramirez, telephoned the headquarters of the operation in Los Angeles and arranged to have his fictitious relatives, Fernando and Arturo, smuggled to Chicago from Tijuana. Then, posing as Fernando Ramirez, Acosta traveled to Tijuana and was led on foot across the border into the United States by one of the guides (known as coyotes) who were employed by the operation. Acosta then was driven from the border to a "drophouse" in Oceanside, California. From there, he was driven through Camp Pendleton and was taken to the apartment of Rudolfo Cortez-Trejo ("Cortez"). Cortez then took Acosta to the home of Augustin and Carmen Castillo in Los Angeles, the headquarters of the operation, where he was housed with other smuggled aliens in the Castillos' converted garage. Three days later, the Castillos drove Acosta and the smuggled aliens to a train station, gave them tickets to Joliet, Illinois, and instructed them where to get off the train.

The INS investigation led to the return of a twenty-two-count indictment against fifteen persons.*fn2 Most of those charged either pled guilty or became fugitives. Only Nicolas Gudino, Maria Gudino, and Martin Cervantes-Pulido stood trial.

During the trial, the government presented evidence that Maria Gudino, daughter of Augustin and Carmen Castillo, left her Chicago home in July 1981, went to her parents' house in Los Angeles, and took charge of the smuggling operation while her parents were in Mexico. Cortez, whose job in the operation was to deliver the illegal aliens to the Castillo house, testified that in July 1981 he received telephone calls from Maria Gudino and that Maria paid him his $1,800 fee for delivering nine aliens. Cortez also testified that he was a codefendant in this case. He stated that he pled guilty to the charges in the indictment and agreed to cooperate with the government in exchange for the government's agreement not to recommend a sentence and to inform the sentencing court of Cortez's cooperation. Cortez's written plea agreement was entered into evidence. On cross-examination, Cortez stated that, at the time he entered his guilty plea, he had been told that there was a possibility that he would be deported. Cortez admitted further that he had many ties to the United States and did not want to be deported. Counsel for Maria Gudino attempted to cross-examine Cortez about his arrest in 1980 for smuggling illegal aliens. The government objected to this line of questioning, and the trial court sustained the objection.

In its case against Nicolas Gudino, Maria's husband, the government produced evidence at trial that Nicolas received payment from some of the Chicago residents who attained the illegal entry of their relatives through the Castillo smuggling operation. Manuel Corchado, a confidential informant for the INS who assisted the Castillo smuggling operation in Chicago, testified that he paid smuggling money to Nicolas on at least four occasions, Corchado also testified that he once was arrested in 1972 for being in the United States illegally, but he was never deported. Corchado stated further that, since 1972, he had cooperated with both the Drug Enforcement Agency ("DEA") and the INS and he believed he received consideration for his cooperation because he was never bothered again about his status as an illegal alien. On cross-examination, counsel for Nicolas Gudino questioned Corchado about a document relating to deportation proceedings against Corchado, a form entitled "Application for Suspension of Deportation." When the defense counsel attempted to introduce the document into evidence, the government argued that the document was not impeaching, and the trial court refused its admission.

The jury returned guilty verdicts against both Maria and Nicolas Gudino, while Martin Cervantes-Pulido was acquitted. On appeal, the Gudinos contend that the district court committed three errors that require reversal of their convictions. First, the district court prohibited cross-examination questions regarding Cortez's 1980 arrest. The defendants argue that these questions were important in establishing the bias or motives of Cortez and that their exclusion violated the sixth amendment. Second, the district court refused to accept into evidence a document regarding deportation proceedings against Corchado. According to the defendants, this document was impeaching and should have been admitted. Third, the district court allowed into evidence documents known as "pollo lists,"*fn3 which were seized from the Castillos' house in Los Angeles. The defendants contend that no testifying witness was in a position to testify to their authenticity. Also, the defendants maintain that the documents were hearsay and that the business records exception to the hearsay rule cannot apply. The defendants further argue that although one of the entries in the pollo lists may be considered an admission, there was insufficient evidence to establish that the rest of the entries were made during and in furtherance of the conspiracy. Finally, the defendants take the position that the pollo lists were highly prejudicial and, for that reason, should not have been admitted.

The United States denies that the trial court committed reversible error. The government argues, first, that since the scope of cross-examination is subject to limitation in the trial court's sound discretion and since Maria Gudino was given a full and fair opportunity to cross-examine Cortez effectively and to expose his biases, the trial court's refusal to allow questions regarding Cortez's 1980 arrest did not violate the sixth amendment. Second, the government contends that the court properly refused to accept into evidence the document regarding Corchado's deportation proceedings because the document was not impeaching and the jury had ample information with which to appraise Corchado's biases. Finally, the government maintains that the admission of the pollo lists was proper. According to the government, sufficient evidence was presented to lay a foundation for the admission of the lists. Furthermore, the government argues that the lists were admissible either because they were co-conspirators' statements, or because they were the business records of the Castillo organization, or because they contained circumstantial guarantees of trustworthiness sufficient to justify their admission under Fed. R. Evid. 803(24).

Cross-Examination of Cortez

It is clear that the sixth amendment guarantees each defendant the right to effective cross-examination of the witnesses against him. Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). In order for a cross-examination to be effective, defense counsel must be permitted to expose the facts from which the factfinder can draw inferences relating to the reliability of the witness. Counsel must be able to make a record from which to argue why the witness might be biased. Id. at 318. It is also clear that a trial court has discretion to control and limit cross-examination. Smith v. Illinois, 390 U.S. 129, 132, 19 L. Ed. 2d 956, 88 S. Ct. 748 (1968); Alford v. United States, 282 U.S. 687, 694, 75 L. Ed. 624, 51 S. Ct. 218 (1931). This circuit reconciled these competing principles in United States v. Fitzgerald, 579 F.2d 1014, 1021 (7th Cir.), cert. denied, 439 U.S. 1002, 58 L. Ed. 2d 677, 99 S. Ct. 610 (1978), which held that, when reviewing the adequacy of a cross-examination, the question is whether the jury had sufficient information to make a discriminating appraisal of the witness's motives and bias.*fn4 In Fitzgerald, this court found that exhaustive cross-examination questions regarding the witness's receipt of immunity, his payments from the government, his liability for tax assessments and fraud penalties, and the attempts he made to get immunity for his associates served to give the jury ample information on the witness's biases. The trial court therefore did not abuse its discretion in sustaining the government's objections to four questions relating to the witness's knowledge of the possible penalties that he faced. See also United States v. Xheka, 704 F.2d 974 (7th Cir.) (where defense counsel elicited impeaching evidence from a government witness, including past crimes and lies, the trial court's prohibition on mentioning the past maximum penalty faced by the witness was not an abuse of discretion), cert. denied, 464 U.S. 993, 104 S. Ct. 486, 78 L. Ed. 2d 682 (1983); United States v. Hinton, 683 F.2d 195 (7th Cir.) (where a government witness was cross-examined about law enforcement officers having sought him out for information and about owing unpaid taxes to the government, the cross-examination was sufficient to allow the jury to assess adequately the witness's biases and the district court's refusal to allow questions regarding a purported misappropriation of funds was not an abuse of discretion), cert. granted, 459 U.S. 1085, 103 S. Ct. 567, 74 L. Ed. 2d 930 (1982).*fn5

In the present case, the government revealed, on direct examination, that Cortez had been named as a defendant in the indictment and that he reached a plea agreement with the government. On cross-examination, Cortez admitted that, at the time of the plea agreement, he knew there was a possibility that he would be deported. This information served to raise the possibility of bias on the part of the witness. Cortez's 1980 arrest, on the other hand, never led to prosecution*fn6 and therefore had minimal value in demonstrating bias. We thus hold that, without knowledge of this arrest, the jury had sufficient information to make a ...

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