USA v. Aguilera-Gallardo

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA, §
§
Plaintiff, §
§
v. § CRIMINAL NUMBER H-26-018
§
EDUARDO AGUILERA-GALLARDO, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
On May 19, 2026, a jury found Eduardo Aguilera-Gallardo
(“Defendant”) guilty of one count of Illegal Re-entry, in violation
of 8 U.S.C. §§ 1326(a) & (b).1 Pending before the court is
Defendant’s Motion for New Trial (Docket Entry No. 110). For the
reasons explained below, Defendant’s Motion for New Trial will be
denied.
I. Background
On March 19, 2026, Defendant was charged with one count of
Illegal Re-entry, in violation of 8 U.S.C. §§ 1326(a) & (b).2
Defendant entered a plea of not guilty.
1Verdict Form, Docket Entry No. 101, p. 1. For purposes of
identification all page numbers reference the pagination imprinted
at the top of the page by the court’s Electronic Case Filing
system.
2Superseding Indictment, Docket Entry No. 66, p. 1. Although
the Government originally charged Defendant with one count of
Illegal Re-entry, in violation of 8 U.S.C. § 1326(a), the
superseding indictment added a violation of § 1326(b).
United States District Court
Southern District of Texas
ENTERED
June 26, 2026
Nathan Ochsner, Clerk
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The case went to trial on May 18, 2026.3 At trial, Defendant
argued that the Government could not prove that his presence in the
United States was knowing, which is an essential element of Illegal
Reentry in violation of 8 U.S.C. §§ 1326(a) & (b).4 Defendant also
asserted the defense of duress, arguing that “[u]pon arrival at the
border, he was kidnapped by the Northeast Cartel [], beaten up
after attempting to escape, held for ransom, and forced to return
to the United States.”5 The case was submitted to the jury on May
19, 2026, which returned a guilty verdict.6
On June 2, 2026, Defendant filed a motion for a new trial.7
The Government filed a response on June 9, 2026.8 Defendant did
not file a reply.
II. Analysis
“Federal Rule of Criminal Procedure 33 permits the district
court to ‘vacate any judgment and grant a new trial if the interest
of justice so requires.’” United States v. Piazza, 647 F.3d 559,
565 (5th Cir. 2011) (quoting Fed. R. Crim. P. 33(a)). “ [ T ] h e
31st Day of Jury Trial, Docket Entry No. 93, p. 1.
4Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
1–2.
5Response to Government’s Motion in Limine Precluding the
Affirmative Defense of Duress, Docket Entry No. 40, p. 1;
Defendant’s Motion for New Trial, Docket Entry No. 110, pp. 1–2.
6Verdict Form, Docket Entry No. 101, p. 1.
7Defendant’s Motion for New Trial, Docket Entry No. 110.
8United States’ Response to Defendant’s Motion for New Trial
(“Government’s Response”), Docket Entry No. 111.
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interest of justice standard ‘requires the district court to
balance the alleged error against the record as a whole and
evaluate the fairness of the trial.’” Id. (quoting United States
v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988)). The Fifth
Circuit has held that a new trial should only be granted “upon
demonstration of adverse effects on substantial rights of a
defendant.” Id.
Defendant argues that he is entitled to a new trial due to the
cumulative effect of the following alleged evidentiary errors at
trial: (1) the Government questioned Defendant about his father’s
text messages, which were inadmissible, unauthenticated hearsay
under Federal Rules of Evidence 402, 403, 602, 802, and 901; (2)
Defendant was wrongly prohibited from offering his father’s sworn
statement, which was admissible under Rule 804(b)(3)(B); and (3)
the court wrongly allowed the Government to question Defendant
about his criminal history, which was inadmissible under Rules 403,
404(b), and 609.9
A. The Father’s Text Messages
At trial Defendant contended that after he was deported to
Mexico he was kidnapped by the Northeast Cartel and forced to cross
the border back into the United States.10 The Government’s theory
9Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
3–4.
10Id. at 1–2.
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was that Defendant’s father paid someone to smuggle Defendant back
into the United States from Mexico.11 To support that theory while
cross examining Defendant the Government asked him about text
messages between his father, Tomas Aguilera, and a person
identified as Emily:
Q. Would you be surprised that the day after you were
deported, one of your friends, Emy or Emily,
reached out to [Tomas Aguilera] and said, “The
thing we talked yesterday, I moved it and took care
of it.” Would that surprise you?
A. Yes, sir.
Q. Given that was on March 26, 2025, that was the day
after you were deported.
A. Yes, sir.
Q. Would it also surprise you that it was just the
very next day, March 27th, 2025, that somebody else
reached out to your father about payment
information.
. . .
Q. Would it surprise you that the day after your
friend text[ed] your father that, that on March 27,
2025, that’s the first time that your father starts
getting text messages about payment information to
get you back into the United States?
A. Yes, sir.
Q. Okay, And that takes a couple of days; is that
correct?
A. Yes, sir.
11Transcript of Jury Trial - Day 2 (“Trial Transcript”), Docket
Entry No. 108, p. 38 lines 6–11.
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Q. So that – those messages continue from the 27th,
the 28th, and the 29th, until you’re eventually
brought back on the 31st?
A. Yes, sir.
Q. And that same number, Amy or Emily, your dad text
back and says, “Eduardo is here. He is with you.”12
Defense counsel objected to the Government’s questions about the
text messages, arguing that they were beyond the scope of direct
and that the text messages were not admitted into evidence and were
hearsay.13 After initially allowing the Government to proceed with
its questioning, the court sustained Defendant’s second objection
to the text messages, finding that the text messages were hearsay
and that Defendant had no personal knowledge of them.14 The court
instructed the jury to disregard the Government’s questions and
Defendant’s answers about the text messages.15
Defendant argues that the Government’s questions about his
father’s text messages violated Rule 901, which generally requires
evidence to be authenticated before it is admitted.16 Barnes, 803
12Id. at 37 lines 14–24, p. 39 lines 2–14.
13Id. at 38 line 1 thru p. 39 line 17.
14Id. at 39 lines 16–17.
15Id. lines 19–22.
16Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
4–5. Defendant relies on United States v. Barnes, 803 F.3d 209
(5th Cir. 2015), and United States v. Lewis, 157 F.4th 415 (5th
Cir. 2025), to argue that the Government’s questions about the text
messages violated Rule 901. However, both Barnes and Lewis discuss
(continued...)
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F.3d at 217 (quoting Fed. R. Evid. 901(a)) (“Authentication is a
condition precedent to the admission of evidence and is satisfied
when a party presents sufficient evidence ‘to support a finding
that the item is what the proponent claims.’”). The Government
relies on Rule 608(b) of the Federal Rules of Evidence, which
“permit[s] inquiry on cross examination into specific instances of
conduct which may bear on a witness’ credibility in order to
impeach the credibility of the witness.” United States v. Farias-
Farias, 925 F.2d 805, 809 (5th Cir. 1991). Rule 608(b) allows
inquiry into bad acts on cross-examination, but does not permit
extrinsic evidence of the bad acts to be admitted.17 Jordan v.
ENSCO Offshore Company, CIVIL ACTION NO. 15-1226, 2016 WL 3049565,
at *9 (E.D. La. May 23, 2016). To be inquired into on cross
examination the “alleged bad act must have a basis in fact,” but
that basis in fact does not have to “be proved as a fact before a
good faith inquiry can be made.” United States v. Nixon, 777 F.2d
958, 970 (5th Cir. 1985); compare with Fed. R. Evid. 901(a) (“[T]he
16(...continued)
evidence that was introduced as exhibits by the Government in its
case in chief. Barnes, 803 F.3d at 217; Lewis, 157 F.4th at
422–23, 434. These cases are therefore not applicable. Moreover,
because the Government did not seek to introduce the text messages,
and instead sought to use the text messages as impeachment evidence
and because the text messages were not admitted by the court, Rule
901 is of no consequence as to whether Defendant was improperly
questioned about his father’s text messages.
17Evidence of the bad act is limited to the witness’ testimony.
Fed. R. Evid. 608(b). Extrinsic evidence of the bad act may be
admitted only if it is a criminal conviction that is admissible
under Rule 609. Id.
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proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.”). Until the
court ruled otherwise, the Government’s use of the text messages
was permitted by Rule 608(b).18
Defendant also argues that the court should have given a
curative instruction directing the jury to disregard all questions
and testimony regarding Tomas’ text messages.19 But after the court
sustained Defendant’s second objection to the text messages, the
court gave the jury the following curative instruction:
THE COURT: I don’t know – the jury will understand
that’s just the Government’s argument.
There’s not evidence to support that.
The whole purpose of allowing it is to
see if there’s any evidence. So the jury
will disregard what the Government’s
lawyer just said for the truth of the
matter.
. . .
THE COURT: Yeah, the objection is sustained. That’s
hearsay. He has no idea what the
messages said.
. . .
MS. OBANDO: Your Honor, we also want to move to
strike that testimony.
18Government’s Response, Docket Entry No. 111, p. 3 (“Defendant
was impeached, consistent with F.R.E. 608(b), with specific
instance of conduct related to the affirmative defense and course
of events Defendant had just described to the jury on direct
examination.”).
19Defendant’s Motion for New Trial, Docket Entry No. 110, p.
7.
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THE COURT: The jury will disregard the statement.20
Despite Defendant’s assertion that the court failed to give a
curative instruction, it is clear from the record that the court
instructed the jury to disregard the questions and testimony
concerning the text messages.
B. The Proffer of the Statement of Defendant’s Father
Before trial the Government investigated Defendant’s father,
Tomas Aguilera, for conspiracy to commit alien smuggling.21 During
its investigation of Tomas Aguilera the Government conducted a
proffer session with him.22 During the proffer Tomas stated that
he paid a ransom to kidnappers so that they would release his son
into the United States.23 He also stated that he drove Defendant
from San Antonio to Houston and provided him shelter until his
arrest.24 HSI Agent Cortez Lott summarized the proffer in a Report
of Investigation (“ROI”).25
20Trial Transcript, Docket Entry No. 108, p. 38 lines 19–23,
p. 39 lines 16–21.
21Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
6–7.
22Government’s Response, Docket Entry No. 111, p. 7.
23Report of Investigation (ROI) - Interview and Phone
Extraction (“ROI”), Exhibit 1 to Defendant’s Motion for New Trial,
Docket Entry No. 110-1, pp. 1–2.
24Id.
25Government’s Response, Docket Entry No. 111, p. 7.
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Although Defendant originally planned to called Tomas as a
witness,26 on the first day of trial Tomas’ attorney informed
Defendant and the Government that Tomas planned to invoke the Fifth
Amendment if called by either party.27 Accordingly, on the second
day of trial, to rebut the Government’s line of questioning about
Tomas’ text messages, Defendant moved to admit the ROI, arguing
that it was admissible as evidence under Rule 804(b)(3)(B).28 The
court was unpersuaded by Defendant’s arguments and held that the
ROI was not admissible under Rule 804(b)(3)(B).29
Defendant argues that he was wrongly prohibited from
introducing the ROI into evidence because it was admissible under
Rule 804(b)(3)(B) and because it was necessary to Defendant’s
defense.30
1. Rule 804(b)(3)(B)
Hearsay evidence is admissible under Rule 804(b)(3)(B) when
the declarant is unavailable, the statement subjects the declarant
to criminal liability such that a reasonable person would not have
made the statement unless he believed it to be true, and the
26Witness List, Docket Entry No. 86, p. 1.
27Email from Tomas Aguilera’s Attorney, Exhibit 3 to
Defendant’s Motion for New Trial, Docket Entry No. 110-3, p. 1.
28Defendant’s Motion for New Trial, Docket Entry No. 110, p.
7.
29Id.
30Id.
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statement is corroborated by circumstances clearly indicating
trustworthiness. United States v. Bell, 367 F.3d 452, 466 (5th
Cir. 2004).
The ROI is not admissible under Rule 804(b)(3)(B) because it
contains hearsay within hearsay. The ROI is not a transcript of
Tomas’ statements during the proffer; it is Agent Lott’s written
summary of Tomas’ account of Defendant’s kidnapping.31 “The
recordation of [Tomas’] statement[s] by [Agent Lott] [is a] classic
example of hearsay within hearsay.” Rock v. Huffco Gas & Oil Co.,
Inc., 922 F.2d 272, 280 (5th Cir. 1991); see also Vanderbilt
Mortgage and Finance, Inc. v. Flores, 789 F.Supp.2d 750, 762 (S.D.
Tex. 2011) (finding that notes summarizing a telephone conversation
constituted hearsay within hearsay), aff’d in part and rev’d in
part on other grounds, 692 F.3d 358 (5th Cir. 2012).
For the ROI to be admissible both Tomas’ statements and Agent
Lott’s statements must come within exceptions to the hearsay rule.
Fed. R. Evid. 805 (“Hearsay within hearsay is not excluded by the
rule against hearsay if each part of the combined statements
conforms with an exception to the rule.”). Although Defendant has
the burden to show that Agent Lott’s statements fall within an
exception to hearsay, he made no such showing at trial or in his
motion for a new trial. See Dempster v. Lamorak Insurance Co., 488
F.Supp.3d 499, 507 (E.D. La. 2020) (“After a party properly objects
31See generally, ROI, Exhibit 1 to Defendant’s Motion for New
Trial, Docket Entry No. 110-1.
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to the admission of evidence as hearsay, the proponent of evidence
bears the burden to show that the statement is not offered as
hearsay or falls within an exception to the hearsay rule.”). The
court therefore did not err by declining to admit the ROI as
evidence under Rule 804(b)(3)(B).
2. Inability to present a defense
“[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” Crane v.
Kentucky, 106 S. Ct. 2142, 2146 (1986) (quoting California v.
Trombetta, 104 S. Ct. 2528, 2532 (1984)). However, a defendant
“does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard
rules of evidence.” United States v. Najera Jimenez, 593 F.3d 391,
402 (5th Cir. 2010). “The Supreme Court has suggested that the
right to present a complete defense is rarely violated when a court
excludes defense evidence under a rule of evidence.” United States
v. Reed, 908 F.3d 102, 113 n.33 (5th Cir. 2018).
Defendant argues that the court should have admitted the ROI
because it was Defendant’s only way to rebut the Government’s
allegations that Tomas paid to have Defendant smuggled back into
the United States.32 However, because the ROI is inadmissable
hearsay, Defendant does not have an unfettered right to introduce
it. Najera Jimenez, 593 F.3d at 402. To be admitted over hearsay
32Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
12–13.
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concerns at trial, statements must have been made under
“circumstances that provide[] considerable assurance of their
reliability.” Chambers v. Mississippi, 93 S. Ct. 1038, 1048
(1973). Although Defendant argues that the ROI does not pose any
hearsay concerns,33 the court concludes that the Tomas’ statements
were not made under “‘circumstances that provide[] considerable
assurance of their reliability’” because (1) Tomas gave his
statement after the Government began investigating him for alien
smuggling in violation of 8 U.S.C. § 1324 and (2) Tomas is
Defendant’s father, “which, if anything, raises questions as to the
reliability” of his statements. McCullough v. Cain, 370 F.App’x
443, 448 (5th Cir. 2010) (quoting Chambers, 93 S. Ct. at 1048)
(affirming the lower court’s exclusion of hearsay statements
despite defendant’s argument that the exclusion deprived him of a
meaningful opportunity to present a complete defense because the
circumstances surrounding the statements did not provide a
considerable assurance of reliability considering that (1) the
declarants gave the statements “in an attempt to exculpate
themselves” and (2) one of the declarants was the defendant’s half
brother, “which, if anything, raise[d] questions as to the
reliability of [his] failure to mention” certain facts).
33Id. at 13. Defendant argues that the ROI does not present
hearsay concerns because (1) the Government had ample opportunity
to cross-examine Tomas, (2) the only reason Tomas was not
testifying as a witness is because the Government chose to deny him
testimonial immunity, and (3) the Government kicked open the door
to Tomas’ statement when it utilized his text messages. Id.
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C. Defendant’s Criminal History
On February 26, 2026, the Government filed a notice of intent
to offer evidence of Defendant’s prior bad acts under Rule 404(b),
including an April 15, 2025, arrest for felony theft.34 At a May
14, 2026, hearing the court held that the Government was precluded
from introducing evidence of Defendant’s prior bad acts at trial.35
At trial Defendant testified that upon being forced back into
the United States by the cartel, he was “[r]eally beat down and
mentally abused.”36 Specifically, Defendant testified that after
he returned to the United States:
I go to my parents’ house and just really – I broke down.
I went in just to my room, jumped in the bathtub and
broke down and cried for a couple of days. And just the
ordeal that I had gone through. And I have mental
disabilities too. The ordeal was horrible for me. . . .
I been trying to work. I go out and work with my dad.
But some days I just didn’t feel like it. Like, through
that mental anguish I stayed home.37
Before beginning its cross-examination of Defendant, the Government
approached the bench to reurge its request to confront Defendant
34United States’ Notice of its Intent to Introduce Certain
Evidence Pursuant to Rules 404(b), 607, and 609 of the Federal
Rules of Evidence, Docket Entry No. 29. Defendant had four prior
convictions. Id. at 1–2. Although the court allowed his
conviction from his April 15, 2025, arrest to be admitted as
Government’s Exhibit 18, it did not allow his three older
convictions to come in as evidence. Trial Transcript, Docket Entry
No. 108, p. 29 line 10 thru p. 30 line 20.
35Hearing, Docket Entry No. 92, p. 1.
36Trial Transcript, Docket Entry No. 108, p. 27 lines 7–8.
37Id. at 26 lines 18–22, p. 27 lines 3–6.
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with evidence of his prior bad acts.38 In a hearing outside the
presence of the jury the Government explained to the court that
Defendant’s prior bad acts were relevant to rebut Defendant’s
testimony that he was simply confined to his father’s home because
of intimidation or emotional distress.39 The court agreed, but
limited the Government’s cross-examination to the felony theft
Defendant committed during the time he was back in the United
States before his arrest.40
Defendant argues that his prior conviction was not admissible
because he did not open the door to admission of the conviction.41
A defendant opens himself up to cross-examination “on the matters
relevantly raised by . . . [direct] testimony.” Brown v. United
States, 78 S. Ct. 622, 628 (1958). “Statements elicited by defense
counsel ‘open[] the door’ [to 404(b) evidence] if they convey an
erroneous impression on the jury.” United States v. Age, 136 F.4th
193, 222–23 (5th Cir. 2025).
Defendant opened himself up to cross-examination about his
April 15, 2025, arrest and subsequent conviction for felony theft.
Duress requires a defendant to be under an unlawful and present,
imminent, and impending threat of such nature as to induce a well-
38Id. at 29 line 10 thru p. 30 line 20.
39Id.
40Id.
41Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
13–16.
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grounded fear of death or serious bodily injury to himself. To
establish his duress defense, Defendant testified that during the
two week period between his return to the United States and his
arrest in this case he was under such mental anguish from his
kidnapping that he simply worked for his dad or stayed home.42
Defendant’s direct testimony about his actions during that two week
period opened him up to cross-examination about other activities he
engaged in during that time, including his April 15, 2025, arrest
and subsequent conviction for felony theft.
Defendant also argues that the court improperly admitted
evidence of Defendant’s bad acts because it failed to engage in a
Beechum analysis.43 Before 404(b) evidence is admitted, courts must
engage in a two-step test. United States v. Beechum, 582 F.2d 898,
911 (5th Cir. 1978). “First, it must be determined that the
extrinsic offense evidence is relevant to an issue other than the
defendant’s character.” Id. “Second, the evidence must possess
probative value that is not substantially outweighed by its undue
prejudice and must meet the other requirement of rule 403.” Id.
“When requested by a party, a trial court must articulate on the
record its finding as to the Beechum probative value/prejudice
evaluation.” United States v. Anderson, 933 F.2d 1261, 1269 (5th
42Trial Transcript, Docket Entry No. 108, p. 26 line 18 thru
p. 27 line 6.
43Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
16–18.
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Cir. 1991). “Even without a request, a court should identify the
admissible purpose of the rule and ‘explain why the evidence’s
probative value is not substantially outweighed by its undue
prejudice’ if admissibility of the extrinsic evidence is a close
question.” United States v. Kinchen, 729 F.3d 466, 471 n.3 (5th
Cir. 2013) (quoting Anderson, 933 F.2d at 1270) (emphasis added).
Although Defendant objected to the admissibility of the
evidence under Rule 404(b), he did not ask the court to make
findings under Beechum. Moreover, when the court ruled that
evidence of Defendant’s April 15, 2025, arrest was admissible, it
explained that the evidence was relevant to Defendant’s defense of
duress because it rebutted Defendant’s testimony that “he was
trying to get his act together and then turn himself in.”44
Although Defendant argues that he was prejudiced by the
admission of his conviction,45 any possible prejudice Defendant
suffered was mitigated by the court’s instructions to the jury that
“the defendant is not on trial for any act, conduct, or offense not
alleged in the indictment.”46 See United States v. Ebron, 683 F.3d
105, 132 (5th Cir. 2012) (“In the past, this court has indicated
44Trial Transcript, Docket Entry No. 108, p. 29 line 19 thru
p. 30 line 17.
45Defendant’s Motion for New Trial, Docket Entry No. 110, pp.
17–18.
46Jury Instructions, Docket Entry No. 98, p. 10.
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that the prejudicial effect of Rule 404 (b) testimony may be
minimized by a proper jury instruction.").
III. Conclusion and Order
For the reasons explained above, the court concludes that
Defendant has failed to demonstrate that his trial resulted in
adverse effects on his substantial rights. Accordingly,
Defendant's Motion for New Trial (Docket Entry No. 110) is DENIED.
SIGNED at Houston, Texas, on this 26th day of June, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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