USA v. Jorge Jesus-Casteneda

Filing

FILED OPINION (J. CLIFFORD WALLACE, CARLOS T. BEA and JANE A. RESTANI) AFFIRMED. Judge: CTB Authoring, FILED AND ENTERED JUDGMENT. [8493346]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-10397

v.

D.C. No.
2:10-cr-00322JAT-2

JORGE DE JESUS-CASTENEDA ,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
October 18, 2012—San Francisco, California
Filed January 30, 2013
Before: J. Clifford Wallace and Carlos T. Bea,
Circuit Judges, and Jane A. Restani, Judge.*
Opinion by Judge Bea

*

The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.

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UNITED STATES V . JESUS-CASTENEDA
SUMMARY**

Criminal Law
Affirming a conviction, the panel held that a confidential
informant’s testimony at trial in a wig-and-mustache disguise
did not violate the Confrontation Clause, where the disguise
was necessary to further the witness’s safety and the
reliability of his testimony was otherwise assured.
The panel did not decide whether the testimony in
disguise violated the defendant’s due process rights because
any such error was harmless as it is clear beyond a reasonable
doubt that even without the possibly prejudicial effect of the
disguise, the jury would have delivered a guilty verdict.

COUNSEL
Josh Patrick Parecki, Assistant United States Attorney,
Phoenix, Arizona, for Plaintiff-Appellee.
Celia M. Rumann, Phoenix, Arizona, for DefendantAppellant.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
BEA, Circuit Judge:
Every actor worth his salt understands that his success
depends on his ability to convey emotions credibly through
his facial expressions and demeanor. Just as an audience
assesses a character’s vulnerability and emotions by watching
the actor’s demeanor, so too does a jury assess a witness’s
credibility and emotions by examining the witness’s
demeanor and eyes.1 Theatrical musings aside, we have
occasion here to address an issue of first impression in this
circuit, namely whether a witness’s testimony in disguise at
trial violates the Confrontation Clause of the Sixth
Amendment to the United States Constitution. Appellant
Jorge de Jesus-Casteneda appeals from his judgment of
conviction for possession with intent to distribute
methamphetamine under 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(viii). The evidence at trial showed that Appellant
drove a car, for a fee, to an undercover warehouse and
delivered a bag containing ten pounds of methamphetamine
from that car to the warehouse, where undercover agents were
conducting a drug-weapons deal with various drug trafficking
suspects. We have jurisdiction under 28 U.S.C. § 1291 and
we affirm.2

1

See NLRB v. Dinion Coil Co., 201 F.2d 484, 487 (2d Cir. 1952)
(“[O]ur courts regard [demeanor evidence] nevertheless as an excellent
clue to the trustworthiness of testimony.”); Churchill v. Waters, 977 F.2d
1114, 1124 (7th Cir. 1992) (mentioning “eye contact” among factors that
aid the fact-finder in assessing a witness’s credibility), vacated on other
grounds, 511 U.S. 661 (1994).
2

The remaining issues Appellant raises on appeal are addressed in the
memorandum disposition filed concurrently with this opinion.

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UNITED STATES V . JESUS-CASTENEDA

Before the confidential informant (“CI”) testified at trial
on the government’s behalf, the government asked the court
if the CI could wear a wig, sunglasses, and mustache during
his testimony to “help disguise some of his features” due to
the “inherent dangers involved in this particular case.” The
government said the CI was involved in investigations with
the “dangerous” Sinaloa Cartel, and that a disguise would
“accommodate the public nature of this courtroom and yet
hopefully protect [his] identity.” Defense counsel objected,
contending the CI’s sunglasses might conceal facial
expressions going towards his credibility, and suggesting the
court instead “mak[e] sure he comes in through a secure
location, secure door, and seal the courtroom.” The court
ruled this was “not even a close question,” the reason for the
disguise was “obvious,” and that when weighed against the
“risks that have been presented,” the disguise was a “very
small impingement . . . on the ability of the [jury] to judge
[the CI’s] credibility.” The CI was ultimately permitted to
testify while wearing a fake mustache and wig but no
sunglasses; his eyes remained visible. On direct examination,
the CI stated he was testifying in a fake mustache and wig.
Defense counsel did not ask for a curative instruction which
would inform the jury that they should not draw any negative
inferences against the defendant from the disguise.
Appellant contends this disguise violated the
Confrontation Clause and denied him due process. The
appropriate standard of review for the district court’s decision
to allow the disguise is abuse of discretion. Cf. United States
v. Shryock, 342 F.3d 948, 974 (9th Cir. 2003) (holding that a
district court’s decision to impose security measures is
reviewed for abuse of discretion); Morgan v. Bunnell, 24 F.3d
49, 51 (9th Cir. 1994) (reviewing for abuse of discretion a
district court’s decision to ensure courtroom safety by placing

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defendant in shackles). We hold the court did not abuse its
discretion, as there was no violation of the Confrontation
Clause and any due process violation was harmless.
The Sixth Amendment grants a criminal defendant the
right “to be confronted with the witnesses against him.” U.S.
Const. amend. VI. A criminal defendant’s right to crossexamination includes the right to face physically those who
testify against him and to ensure that the witness gives his
statement before the jury so the jury may observe the
witness’s demeanor. Coy v. Iowa, 487 U.S. 1012, 1017
(1988); Maryland v. Craig, 497 U.S. 836, 851 (1990). There
is no Ninth Circuit or Supreme Court authority addressing
whether a witness’s testimony in disguise violates the
Confrontation Clause. However, we are assisted by the rule
various state courts have derived from Supreme Court
precedent which addresses the constitutionality of analogous
arrangements which preclude the normal face-to-face
confrontation that occurs when a witness testifies in the
unobstructed view of the defendant. See Craig, 497 U.S. at
850 (holding that “the face-to-face confrontation requirement
is not absolute” and the Confrontation Clause “may be
satisfied absent a physical, face-to-face confrontation at trial
only where denial of such confrontation is necessary to
further an important public policy and only where the
reliability of the testimony is otherwise assured.”).3
3

In Craig, the Supreme Court considered whether allowing child
witnesses in a child abuse trial to testify via a one-way closed circuit
television violated the Confrontation Clause. Id. at 840. The procedure
prevented the witnesses from seeing the defendant but permitted the judge,
jury, and defendant to see their demeanor. Id. at 851. The Court upheld
the constitutionality of the procedure, holding that face-to-face
confrontation is not an “indispensable” element of the Confrontation
Clause. Id. at 849, 857. The primary purpose of the Confrontation Clause

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In Romero v. State, 173 S.W.3d 502 (Tex. Crim. App.
2005), the state’s witness in a criminal trial was allowed to
testify wearing dark sunglasses, a baseball cap pulled down
over his forehead, and a jacket with an upturned collar. Id. at
503. His mouth, jaw, and the lower half of his nose were
obscured, and almost all of his face was hidden from view.
Id. He wanted the disguise because he was fearful of the
defendant’s capacity for retaliation. Id. The Texas Court of
Appeals reversed the defendant’s conviction, and the Texas
Court of Criminal Appeals affirmed the decision of the Court
of Appeals, holding that trial courts should apply the Supreme
Court’s test from Craig to decide whether witness testimony
in disguise violates the Confrontation Clause. Id. at 504–05.
Namely, courts should consider whether the disguise furthers
an important state interest and whether the reliability of the
evidence could be otherwise assured. Id. at 505 (citing Craig,
497 U.S. at 850). Determining “[w]hether the reliability of
the testimony is otherwise assured turns upon the extent to
which the proceedings respect the four elements of
confrontation: physical presence, oath, cross-examination,
and observation of demeanor by the trier of fact.” Id. (citing
Craig, 497 U.S. at 846).4 See also State v. Hernandez,
is to ensure the reliability of testimony by permitting the jury to draw
conclusions from the manner and demeanor of the witness. Id. at 845–46.
In the case before it, the Court found a strong state interest in protecting
child abuse victims from further trauma, and the testimony was otherwise
reliable because the witnesses were under oath, subject to crossexamination, and their demeanor was on display before the jury. Id. at
853, 856–57.
4
In Romero, the T exas Court of Criminal Appeals found the disguise
violated the Confrontation Clause. Id. at 507. The “presence” element and
“observation of the witness’s demeanor” element were both compromised,
as the jury could not see the witness’s eyes or facial expressions and the
witness could not look the defendant in the eyes. Id. at 505. The court

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986 A.2d 480, 487–88 (N.H. 2009) (adopting the same rule
from Craig to assess the constitutionality of a witness’s
testimony in disguise).
Applying that rule here, the CI’s disguise in the form of
a wig and mustache was necessary to further an important
state interest, namely a witness’s safety. The government
offered reasons for protecting the CI’s identity, given his
continuing involvement in Sinaloa Cartel drug investigations
as an undercover agent. Cf. Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986) (holding a district court has
discretion “to impose reasonable limits on [] crossexamination based on concerns about, among other things,
. . . the witness’s safety”); Morgan v. Bunnell, 24 F.3d 49, 51
(9th Cir. 1994) (recognizing a trial court’s “grave
responsibility of guarding the safety of courtroom personnel,
parties, counsel, jury and audience” and holding that
shackling a defendant during trial was not an abuse of
discretion where courtroom safety was at risk). Second, the
reliability of the CI’s testimony was otherwise assured,
because (1) he was physically present in the courtroom, (2) he
testified under oath, thus impressing him with the seriousness
of the matter and the possibility of penalty for perjury, (3) he
was subject to cross-examination while Appellant could see
him,5 (4) despite his disguise, the jury was able to hear his
voice, see his entire face including his eyes and facial

emphasized how the face is “the most expressive part of the body and
something that is traditionally regarded as one of the most important
factors in assessing credibility.” Id. at 506.
5

T he Confrontation Clause assures the defendant the presence of
witnesses “upon whom [the defendant] can look while being tried.” Coy,
487 U.S. at 1017.

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reactions to questions, and observe his body language. These
are all key elements of one’s demeanor that shed light on
credibility.6 Thus, we hold that in this case, the disguise in
the form of a wig and mustache did not violate the
Confrontation Clause.7
Second, we recognize that a witness’s testimony in
disguise might give rise to a due process violation in certain
circumstances by prejudicing the jury against the defendant.
For example, it could give a jury the impression that the
defendant must be dangerous if witnesses need to protect
their identities from him. Or, it might suggest that the
witness in disguise is particularly valuable to law
enforcement, and hence is particularly credible. Here, given
that Appellant had undisputedly seen the CI in person before
trial at the undercover warehouse, an alternative solution
might have been to seal the courtroom, thereby protecting the
CI’s identity from the public.
We need not decide whether the CI’s testimony in
disguise violated Appellant’s due process rights because even
assuming it did, such error was harmless. Even without the
6

The Supreme Court has stated that a central value of the Confrontation
Clause is having the witness “stand face to face with the jury in order that
they may look at him, and judge by his demeanor upon the stand and the
manner in which he gives his testimony whether he is worthy of belief.”
California v. Green, 399 U.S. 149, 158 (1970) (citation omitted).
7

This result is consistent with the law in other circuits. See Morales v.
Artuz, 281 F.3d 55, 60–62 (2d Cir. 2002) (holding, on review of denial of
federal habeas petition, that permitting a witness’s testimony in dark
sunglasses was not contrary to clearly established federal law, given that
the jurors still “had an entirely unimpaired opportunity to assess the
[witness’s] testimony” and credibility through her demeanor, speech, and
body language).

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possibly prejudicial effect of the CI’s disguise, it is clear
beyond a reasonable doubt that the jury would have delivered
a guilty verdict. Chapman v. California, 386 U.S. 18, 23-24
(1967) (holding constitutional error harmless if error did not
contribute to the verdict beyond a reasonable doubt). The
evidence included a video showing Appellant delivering the
methamphetamine to the warehouse from the car and staying
in the warehouse during discussions about a drug-weapons
deal, Appellant’s own contradictory testimony regarding
whether he knew he possessed the drugs, and Agent Johnny
Estrada’s testimony that he saw Appellant deliver the drugs
to the warehouse. Thus, any due process violation was
harmless.
AFFIRMED.