Case: 20-40179 Document: 00515703098 Page: 1 Date Filed: 01/12/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 12, 2021 No. 20-40179 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Elder Orellana-Castellanos, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:19-CR-1943-1 Before Wiener, Costa, and Willett, Circuit Judges. Per Curiam:* After a one-day trial, a jury found Elder Orellana-Castellanos guilty of transporting Suamy Lemuz-Oviedo within the United States despite knowing—or in reckless disregard of the fact—that Lemuz-Oviedo had “entered, or remain[ed] in the United States in violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii). There is no question the defendant was transporting * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-40179 Document: 00515703098 Page: 2 Date Filed: 01/12/2021 No. 20-40179 Lemuz-Oviedo; he was driving Lemuz-Oviedo and Lemuz-Oviedo’s girlfriend, Kayla Bueso-Morel, in a vehicle that arrived at the Falfurrias immigration checkpoint in south Texas. Nor is there a question about Lemuz-Oviedo’s immigration status; he is a Honduran national without lawful status in the United States (the same is true of Bueso-Morel). It is also undisputed that the defendant’s transporting of Lemuz-Oviedo furthered that unlawful presence by helping him get north. The only arguable element of the crime is whether the defendant knew about Lemuz-Oviedo’s unlawful status. On appeal, the defendant argues that certain evidence was admitted to prove this disputed element in violation of the Confrontation Clause. On the knowledge element, Lemuz-Oviedo testified at trial that the defendant knew Lemuz-Oviedo lacked lawful status because the defendant coached both passengers on what lies to tell Border Patrol agents if they were questioned. But the defendant argues the jury heard other evidence— specifically, the out-of-court statement of the other passenger, Bueso- Morel—that tainted his conviction in violation of the Confrontation Clause. The out-of-court statement is the law enforcement report summarizing what Bueso-Morel told Border Patrol agents at the checkpoint. Bueso-Morel was deported before trial, so she did not testify and thus was not subject to cross- examination. The government concedes that introduction of the report summarizing Bueso-Morel’s statement violated the Confrontation Clause but contends that defense counsel either invited or waived the error because at times it appeared the defense was seeking to elicit the statement. What about Bueso-Morel’s statement was helpful to the defense? Although Bueso- Morel told Border Patrol agents that the defendant knew both passengers were illegally in the United States, Bueso-Morel said that the person who coached them on what to tell law enforcement was not the defendant but the person who performed the previous step in the smuggling operation: picking 2 Case: 20-40179 Document: 00515703098 Page: 3 Date Filed: 01/12/2021 No. 20-40179 them up at a stash house near the border and driving them to a Whataburger in Edinburgh, where defendant then picked ...
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