United States v. Zacarias

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-50482
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN CARLOS ZACARIAS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-99-CR-1642-H)
_________________________
June 1, 2001
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Juan Zacarias appeals his conviction of, and
sentence for, hostage taking in violation of 18
U.S.C. § 1203. Finding no sentencing error,
and that any error in excluding evidence was
harmless, we affirm.
I.
Zacarias was convicted of taking part in the
kidnaping of Leonard Mickens. The kidnaping
occurred when Mickens drove his prospective
brother-in-law, Mario Sanchez, to a house in
Ciudad Juarez, Mexico. Mickens testified that
shortly before midnight, Mario Sanchez asked
his sister, Erica Sanchez, to drive him to
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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Juarez, but Mickens volunteered to drive, be-
cause he thought it was too late for Erica to
make the trip.
Mickens drove to a house that Sanchez di-
rected him to in Juarez, just across the border
and not far from the Zaragoza Bridge. Once
there, Mickens waited in his truck while San-
chez engaged in a long conversation with an
unidentified man outside the house. Sanchez
and the man then went into the house.
Eventually, Mickens became impatient and
went to the house to see whether Sanchez was
ready to leave.
When he went inside the house, Mickens
saw seven to ten men with guns. He tried to
leave, but the men pushed him back into the
house and restrained him with tape.
Mickens learned later that the men
kidnaped him because Sanchez was involved in
illegal drug-trafficking and owed the kidnapers
$100,000 on a drug debt. Sanchez also was
abducted, and, at the time of trial, his
whereabouts were unknown.
Mickens testified that men with guns
grabbed him and taped his body and head so
that he could not see. They also “pok[ed]”
him with guns while he was restrained with
tape. Mickens did not testify that Zacarias
was present when he was taken hostage. He
did testify, however, that over an hour later,
ZacariasSSwho was referred to as “Juan” and
“Juanito,”SSwas present in the house where
Mickens was being held and helped remove
the tape from Mickens.
Another man referred to as “Chuy” also
was present. Juan asked Mickens how much
money he could give them. Mickens replied
that he could give about $5,000. Juan then
told Mickens that he also wanted the title to
Mickens’s Isuzu Rodeo.
Mickens testified that the next day he, Juan,
Chuy, and two men with guns went to a
restaurant in Juarez, where they discussed ar-
rangements for getting the title and money.
Mickens thought about running away at that
point but did not, because of the presence of
the two men with guns who were “body
guarding” him.
Instead, Mickens offered to cross the
border into the United States, get the money
and title, and return. Unsurprisingly, his
captors declined this offer. Instead, they let
Mickens place a telephone call from a pay
telephone to his friend Rod Redic in El Paso.
Redic testified that he received a call at his
girlfriend’s house from a person wanting
“$5,000 and title to the truck,” but that he
could not understand exactly what this person
wanted him to do. Mickens then got on the
line and asked Redic to bring $5,000 and the
title to the Rodeo.
Mickens then relayed to Redic instructions
he received from Juan, telling Redic to take
the money and title just over the Zaragoza
Bridge onto the Mexican side, where he was
to meet Juan between 5:00 and 5:30 p.m.
Mickens described Juan as a “big, heavy-set,
black guy.” Mickens then was taken back to
the house, where he watched the Olympics on
television. During this time, Chuy departed,
leaving only Juan and the two men with guns
holding Mickens.
Meanwhile, Redic collected the title and
$4,000 from Mickens’s father, who testified
that he gave the money because Redic told him
that “my son was being held by someone, and
they demanded this money and title for his

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release.” Redic then added $1,000 of his own
money and went across the Zaragoza Bridge,
as instructed.
Mickens testified that about 5:00 p.m., Juan
and one of the men with a gun left the house,
presumably to meet Redic. Redic testified that
after he had parked on the Mexican side of the
bridge, a vehicle pulled up beside him; the
driver motioned him to come over. Redic got
into the car in which sat only one man, whom
Redic later identified as Zacarias. Redic was
told that his friend was all right, and he then
handed over the money and title.
Mickens testified that the man with the gun
who had gone with Juan returned to the house,
and that the two men took him to the bridge,
where he was released. He saw Redic there
and walked over and got into Redic’s car,
whereupon they crossed the border.
During the investigation of the kidnaping,
an informant told the FBI that Zacarias was
involved, and provided an FBI agent with
Zacarias’s pager number. One of Mario San-
chez’s sisters, who had been negotiating for
his release, also provided the FBI with the
same pager number, which was given to her by
the person with whom she had been
negotiating, who identified himself as “Juan.”
The pager number was listed in the name of
Mario Zacarias, Juan’s brother, and the
address listed on the account was Juan’s
parents’ house.
After collecting this information, the FBI
compiled photo arrays of five individuals with
similar builds and facial features to Zacarias.
After being shown the photos separately,
Mickens and Redic identified Zacarias as the
kidnaper known as “Juan.”
At trial, Mickens and Redic again identified
Zacarias, and Zacarias was convicted of hos-
tage taking. At sentencing, and over Zacarias’
objections, the court applied a six level upward
adjustment pursuant to U.S.S.G. § 2A4.1-
(b)(1), because a ransom demand was made,
and a two-level increase pursuant to U.S.S.G.
§ 2A4.1(b)(3), because a dangerous weapon
was used.
II.
Zacarias argues error as a matter of law in
the six-level increase for the ransom demand.
He contends that an upward adjustment can be
made under § 2A4.1(b)(1) only if a ransom de-
mand is made on the government.
We conduct a de novo review of the
application of the Sentencing Guidelines. See
United States v. Rocha, 916 F.2d 219, 242
(5th Cir. 1990). “The Sentencing Guidelines
are subject to the rules of statutory
construction.” Id. at 243 (citation omitted).
“[T]his court follows the clear, unambiguous
language of the Guidelines if there is no
discernible manifestation of contrary intent.”
Id.
Section 2A4.1(b)(1) provides that “[i]f a
ransom demand or a demand upon government
was made, increase by 6 levels.” Zacarias
argues that this means that if a ransom demand
or other demand was made on the
government, an increase is applicable, but that
the increase in no way applies to cases in
which ransom demands are made on
individuals. He arrives at this conclusion by
citing the “doctrine of the last antecedent” and
then giving this doctrine its opposite meaning.
Zacarias quotes United States v. Campbell,
49 F.3d 1079, 1086 (5th Cir. 1995), which
states that “qualifying words, phrases, and

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clauses are to be applied to the words or
phrases immediately preceding, and are not to
be construed as extending to . . . others more
remote.” Just so, and because of the doctrine
of the last antecedent, Zacarias’s interpretation
is completely wrong.
The words “upon government” qualify only
“demand” but not the disjunctive “ransom de-
mand” that appears before the “or.” Cf. Reiter
v. Sonotone Corp., 442 U.S. 330, 339 (1979)
(stating that terms connected by the disjunctive
are to be given separate meanings). The court
correctly applied the six-level increase for a
ransom demand.
III.
Zacarias contends that the court erred in
making a two-level increase pursuant to
§ 2A4.1(b)(3) for the use of a dangerous
weapon. He argues that he did not possess or
use a weapon during the commission of the
crime and that, because he was not indicted for
conspiracy, he cannot be held accountable for
the conduct of the men who had guns.
We review de novo any legal conclusions
regarding application of the guidelines. See
United States v. Gonzalez, 996 F.2d 88, 91
(5th Cir. 1993). Section 2A4.1(b)(3) provides
that “[i]f a dangerous weapon was used,
increase by 2 levels.” “Use” of a dangerous
weapon includes the discharge of a firearm or
conduct that amounts to “more than
brandishing, displaying, or possessing a firearm
or other dangerous weapon.” § 2A4.1, com-
ment. (n.2); U.S.S.G. § 1B1.1, comment.
(n.1(g)).
The district court correctly concluded that
the use of guns to hold Mickens hostage was
a “use” under the guidelines. Zacarias does
not disagree with this conclusion but avers that
the use of guns by others cannot be attributed
to him for sentencing purposes. Unfortunately
for Zacarias, this interpretation ignores the
plain language of the guidelines.
Section 1B1.3(a)(1)(A) allows the court to
consider “all acts and omissions committed,
aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the
defendant” in determining relevant conduct for
sentencing guideline purposes. Further,
§ 1B1.3(a)(1)(B) states that “all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal
activity” constitute relevant conduct to be con-
sidered by the court. Finally, the defendant
can be held accountable for the conduct of
others whether or not the defendant is charged
with a conspiracy. See § 1B1.3(a)(1)(B),
comment. (n.2).
Use of a dangerous weapon was more than
reasonably foreseeable to Zacarias, who, in
fact, had actual knowledge that dangerous
weapons were being used as he directed the
holding and ransoming of Mickens. Thus, at
best Zacarias “aided” and “abetted” the use of
guns in holding Mickens, and, more probably,
he “counseled, commanded” and “induced” the
use of the firearms. See § 1B1.3(a)(1)(A); cf.
United States v. Aguilera-Zapata, 901 F.2d
1209, 1212-16 (5th Cir. 1990).
IV.
Zacarias contends that the court deprived
him of his Sixth Amendment right to
confrontation and cross-examination when it
refused to admit into evidence a tape recording
of a conversation between the victim,
Mickens, and Francisco Sanchez, the brother
of Mario Sanchez, the other kidnaping victim.
Zacarias contends that the tape would have
shown that Francisco Sanchez threatened

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Mickens by saying that someone had to “pay
for what happened to his brother,” and that the
tape would have impeached Mickens’s
testimony by showing that fear of Francisco
Sanchez gave Mickens a motive to testify that
Zacarias was a kidnaper. Zacarias contends
that the relevant evidence on the tape would
have discredited the other evidence against
him, which consisted only of “weak out of
court identifications and questionable in court
identifications.”
The government contends that the court
properly excluded the recording, because the
information on the tape was not relevant, was
hearsay, and was only a collateral matter for
impeachment. The government contends, in
the alternative, that even if the exclusion of the
evidence was error, the error was harmless,
because the evidence that identified Zacarias
was strong and was corroborated by other
evidence.
A witness’s possible bias, prejudice, or mo-
tivation for testifying is relevant evidence. See
United States v. Alexius, 76 F.3d 642, 645
(5th Cir. 1996). The exclusion of evidence rel-
evant to the bias or ulterior motive of a wit-
ness may violate the Sixth Amendment. Unit-
ed States v. Fortna, 796 F.2d 724, 734 (5th
Cir. 1986). Nevertheless, a court retains broad
discretion “in restricting the scope of cross-
examination, including how bias may be
proved.” Id. (citations omitted).
We review a restriction on the scope of
cross-examination only for abuse of discretion.
Alexius, 76 F.3d at 644. “[E]videntiary rulings
constitute reversible error only when they
affect a defendant’s substantial rights.” Id.
(citation omitted).
Zacarias sought the admission into evidence
of a tape recording of a telephone
conversation between Mickens and Francisco
Sanchez. Zacarias argued that Francisco San-
chez stated on the tape that he was going to
“get everybody” in retaliation for his brother’s
kidnaping. Zacarias argued that Francisco
Sanchez was dangerous and terrifying, that his
entire family was afraid of him, and that he
threatened Mickens. Zacarias argued that the
tape constituted relevant evidence of Mick-
ens’s motive for testifying against Zacarias,
i.e., to show that “somebody needs to go
down on this case.”
The court offered to admit a portion of the
recording that described Zacarias, identified as
Juanito on the tape, as a fat person, because at
trial, Zacarias was “not so fat.” The court
concluded that nothing else on the tape was
admissible “for any conceivable purpose.” The
court explained that evidence of Francisco
Sanchez’s making threats was not admissible
or relevant, because he was not involved in the
case.
Zacarias’s attorney cross-examined Mick-
ens concerning his fear of Francisco Sanchez,
and Mickens said that he was not afraid.
When he was asked whether everyone in the
Sanchez family was afraid of Francisco San-
chez, Mickens testified: “I wouldn’t say ev-
erybody’s afraid of him. I will say he’s crazy.
But I wasn’t afraid of him or nothing like
that.” Mickens reiterated that he did not have
any reason to be afraid of Francisco Sanchez.
At that point, Zacarias’s counsel referred to
the tape recording of the telephone
conversation between Mickens and Francisco
Sanchez. Mickens denied having a telephone
conversation with Francisco Sanchez. Later,
during the defense’s presentation of its case,
Mickens testified that he did not remember

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having the telephone conversation with
Francisco Sanchez.
A portion of the tape was then played while
the jury was present. After hearing a portion
of the tape, Mickens identified his voice and
Francisco Sanchez’s voice, and Mickens iden-
tified another person who was present during
the telephone conversation that had been re-
corded.
Zacarias’s counsel asked Mickens whether
Francisco Sanchez had threatened him and
“everyone else in the world” during the
recorded conversation. Mickens denied that
Francisco Sanchez had threatened him. Za-
carias’s attorney offered the tape as
impeachment evidence. The court stated that
“it would be impeachment as to a completely
collateral matter, so it’s not admissible.” The
court, however, allowed Zacarias to include
the tape as a record exhibit. On redirect,
Mickens admitted that “people are afraid” of
Francisco Sanchez but again denied that he
was afraid of him.
A witness’s biases and motivation for tes-
tifying are “always relevant as discrediting the
witness and affecting the weight of his
testimony.” Alexius, 76 F.3d at 645 (citation
and internal quotations omitted). Assuming
arguendo that the district court erred by ruling
that the alleged impeachment portion of the
tape recording was not admissible, the
exclusion of the evidence was harmless,
because “it is clear beyond a reasonable doubt
that the error did not contribute to the
verdict.” Id. at 646 (citation omitted).
Zacarias did not testify; his only defense
was erroneous identification. In a pre-trial
photographic line-up and at trial, Mickens
identified Zacarias as one of the kidnapers.
Mickens’s friend, Roderick Redic, who
delivered the ransom and the truck title in
exchange for Mickens’s release, also identified
Zacarias in a pretrial photographic line-up and
at trial.
Moreover, an FBI agent testified that a
government informant had connected Zacarias
to the kidnaping and gave him a pager number
that matched a pager number that the agent
had been given by another source. The pager
was registered to Zacarias’s parents’ house.
The informant provided corroboration that Za-
carias was involved in the kidnaping through
telephone calls made by the informant to the
pager number.
Although Zacarias asserts that the out-of-
court and in-court identifications were weak
and questionable, the record does not support
this assertion. The eyewitnesses did not hes-
itate in their identifications of Zacarias, and
nothing in the record provides reason to
question the reliability of the photo
identification. Finally, Zacarias’s counsel also
took the opportunity to cross-examine Mick-
ens about his fear of Francisco Sanchez.
Even if Mickens’s motive for identifying
Zacarias as one of his kidnapers was fear of
Francisco Sanchez, the fact remains that Redic
separately identified Zacarias as the one to
whom he paid the ransom. Thus, for Zacari-
as’s theory of defense to be borne out, there
also must have been a reason for Redic not
only to lie about Zacarias’s being the ransom-
er, but there must also have been a reason for
Redic to pick out Zacarias’s photograph from
the photo line-up. Zacarias provided no evi-
dence casting doubt on Redic’s testimony, nor
could he dispute the government’s
corroborating evidence that a pager linked to
Zacarias was used as part of the ransom

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negotiations surrounding the holding of Mario
Sanchez.
There was ample evidence upon which to
convict, and, therefore, it is plain beyond a
reasonable doubt that any fear Mickens had of
Francisco Sanchez did not contribute to the
verdict. The exclusion of the alleged
impeachment evidence on the tape recording
was harmless.
V.
In his statement of the case, Zacarias makes
a passing charge that the evidence against him
was insufficient to support his conviction, but
he does not mention this challenge elsewhere
in his brief. We deem this issue waived,
because it was not adequately briefed. See,
e.g., United States v. Mullin, 178 F.3d 334,
340 n.1 (5th Cir. 1999).
AFFIRMED.

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