United States v. Trujillo

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES DAVID TRUJILLO, JR., Defendant-Appellant.

No. 23-1318

United States Court of Appeals, Tenth Circuit

July 31, 2024

D.C. No. 1:22-CR-00213-CMA-2 (D. Colo.)

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.

ORDER AND JUDGMENT ^[*]

CAROLYN B. McHUGH CIRCUIT JUDGE.

A jury convicted James David Trujillo, Jr. of bank robbery brandishing a firearm during a crime of violence, and being a felon in possession of a firearm. On appeal, Mr. Trujillo argues his Sixth Amendment confrontation rights were violated when a witness refused to answer some cross-examination questions and when the district court later declined to recall the witness. We affirm because Mr. Trujillo's confrontation rights were not violated and because the district court did not abuse its discretion by declining to recall the witness.

I. BACKGROUND

A. Factual History

The following facts are drawn from the testimony and evidence presented at trial. We focus on the facts most relevant to Mr. Trujillo's appeal.

On June 15, 2022, at 5:35 p.m., two masked men entered a credit union in Lakewood, Colorado. One man was holding a shotgun, the other an AR-15 rifle. The men aimed their guns at the tellers and demanded money. The tellers gave them $2,779, which was all the money the credit union had. The men took the money, exited the building, and left in a waiting vehicle.

Law enforcement quickly identified Darren Michael Connolly as a suspect. Mr. Connolly wore an ankle monitor, and GPS location data from the monitor placed him at the credit union at the time of the robbery. Based on this location data, officers arrested Mr. Connolly and searched his home, where they seized a 12-gauge shotgun and an AR-15 rifle.

Officers also seized a cellphone from Mr. Connolly. The phone showed more than fifty calls between Mr. Connolly and Mr. Trujillo between June 15 (the day of the robbery) and June 16. During that time, there were also numerous text messages between Mr. Connolly and Mr. Trujillo. Some of the text messages were incriminating. For example, the morning of the robbery, Mr. Connolly texted Mr. Trujillo, "Aye fam grab my gauge and put it with the bab y [sic] hide'em." Supp. ROA Vol. III at 2. At trial, an officer confirmed that "gauge" is "slang for 12 gauge." ROA Vol. III at 298.

Officers also found the vehicle used in the robbery, which led them to Christopher Nazarenus. An officer met with Mr. Nazarenus, who admitted to being the getaway driver for the robbery. Mr. Nazarenus claimed that Mr. Trujillo and Mr. Connolly entered the credit union with a shotgun and an AR-15 rifle and committed the robbery.^[1]

B. Procedural History

A grand jury indicted Mr. Trujillo for bank robbery, brandishing a firearm during a crime of violence, and being a felon in possession of a firearm. Mr. Connolly and Mr. Nazarenus were indicted on similar charges but pleaded guilty.

Mr. Trujillo's case proceeded to a five-day jury trial, where the Government presented several witnesses. Mr. Nazarenus testified for the Government and was the only eyewitness who testified that Mr. Trujillo was involved in the robbery. Mr. Connolly and Mr. Trujillo did not testify.

During opening statements, defense counsel told the jury that Mr. Nazarenus was untrustworthy because he had molded and changed his story "to fit" law enforcement needs and thus avoid prison. Supp. ROA Vol. IV at 15. For example, counsel explained that when Mr. Nazarenus was arrested for the robbery, he was released on bond instead of being detained. And two weeks after being released on bond, Mr. Nazarenus was arrested for motor vehicle theft, yet his bond was not revoked.

When he testified, Mr. Nazarenus described Mr. Trujillo's involvement in the robbery. Before cross-examination, the Government informed defense counsel and the court that on his attorney's advice, Mr. Nazarenus intended to invoke the Fifth Amendment in response to questions about his pending motor vehicle theft charges. Because Mr. Nazarenus intended to invoke the Fifth Amendment, the Government requested that Mr. Trujillo not be allowed to cross-examine him about the pending charges.

Defense counsel objected, arguing the pending charges were necessary for impeachment purposes and citing Davis v. Alaska, 415 U.S. 308 (1974). The court deferred ruling on the matter until it could review Davis and asked defense counsel to save questions about the pending charges until later in the cross-examination.

Counsel proceeded with cross-examination, during which Mr. Nazarenus admitted that he lied under oath when testifying before the grand jury in this case. Similarly, Mr. Nazarenus admitted that some of his statements to law enforcement about the robbery were inconsistent and untruthful. Mr. Nazarenus also confirmed he had two outstanding warrants when he met with officers to discuss the robbery, yet they did not arrest him.

At this point, the district court stated it was ready to rule on the Sixth Amendment issue. Citing Davis, the court explained that Mr. Nazarenus was "a key witness for the Government" and decided that Mr. Trujillo was "entitled to question Mr. Nazarenus about his pending felony charge, particularly because his bond was not revoked." ROA Vol. III at 671.

Defense counsel continued with cross-examination and asked Mr. Nazarenus about his pending motor vehicle theft charges. Mr. Nazarenus responded by invoking the Fifth Amendment. When Mr. Nazarenus invoked the Fifth Amendment, defense counsel did not ask the district court to instruct Mr. Nazarenus to answer the questions. Instead, she began asking Mr. Nazarenus about his other offenses, and he answered those questions. He also confirmed that the Government had not asked that his bond be revoked, even though he had "picked up new cases." Id. at 677. Mr. Nazarenus further agreed that in exchange for his cooperation, the Government was recommending he receive probation and not a prison term.

That night, Mr. Trujillo moved to strike Mr. Nazarenus's testimony, arguing that his refusal to answer questions about his pending charges violated Mr. Trujillo's confrontation rights. Mr. Trujillo alternatively requested that Mr. Nazarenus "be recalled to testify, allowing the defense to reset the question, and properly request the [c]ourt to order Mr. Nazarenus to answer." ROA Vol. I at 80.

The district court denied Mr. Trujillo's motion. The court explained that it would have ordered Mr. Nazarenus to answer questions about the pending charges had defense counsel made that request. The court thus "determine[d] that it was error to not order Mr. Nazarenus to answer these questions." ROA Vol. III at 344. Nevertheless, the court did not strike the testimony because the jury had "sufficient information upon which to judge Mr. Nazarenus'[s] credibility," so Mr. Trujillo "was not materially prejudiced by Mr. Nazarenus'[s] nonanswers." Id. at 345 (citing United States v. Nunez, 668 F.2d 1116 (10th Cir. 1981)). The court thus denied the motion to strike and the alternative request to recall Mr. Nazarenus.

At the conclusion of the trial, the jury found Mr. Trujillo guilty on all counts. He appealed those convictions, asserting a violation of his Sixth Amendment confrontation rights.^[2]

II. DISCUSSION

Mr. Trujillo argues his Sixth Amendment confrontation rights were violated when Mr. Nazarenus invoked the Fifth Amendment and refused to answer questions about his pending charges. But Mr. Trujillo does not argue the district court erred by not striking Mr. Nazarenus's testimony. He instead argues that "it was [c]onstitutional error for the district court to prohibit him from recalling [Mr.] Nazarenus." Appellant's Br. at 22 n.5.

"We review de novo whether a defendant's Sixth Amendment confrontation rights were violated by cross-examination restrictions." United States v. Montelongo, 420 F.3d 1169, 1173 (10th Cir. 2005) (quotation marks omitted). But even if restrictions on cross-examination do not violate the Sixth Amendment, they may still be an abuse of discretion. United States v. Jorgenson, 451 F.2d 516, 519 (10th Cir. 1971) ("A limitation of cross-examination, though deemed not prejudicial to the accused's rights, may still be determined to be an abuse of discretion by the trial court."). "Abuse of discretion requires arbitrary, capricious, whimsical or manifestly unreasonable judgment." United States v. Maldonado-Passage, 56 F.4th 830, 837 (10th Cir. 2022) (internal quotations marks omitted).

We first explain why Mr. Trujillo's Sixth Amendment confrontation rights were not violated. We then conclude the district court did not abuse its discretion by declining to recall Mr. Nazarenus.

A. Sixth Amendment

The Sixth Amendment's Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The "primary interest" secured by this clause "is the right of cross-examination." Davis v. Alaska, 415 U.S. 308, 315 (1974) (quoting Douglas v. Alabama, 380 U.S. 415, 418 (1965)). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Id. at 316. Thus, "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id. at 316-17.

In some cases, the criminal defendant's right of cross-examination conflicts with a witness's Fifth Amendment right against self-incrimination. United States v. Nunez, 668 F.2d 1116, 1121 (10th Cir. 1981). If "a defendant's cross-examination is restricted by the competing Fifth Amendment right of the witness, it may be...