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Click here for the full text of this decision FACTS:At an El Paso truck stop, police officer Jose Lucero observed a car with Chihuahuan license plates pull up to an empty flatbed truck. Juan Marrufo exited the car’s passenger seat, and he and the driver of the car unloaded two large bags from the car and handed them to someone inside the truck. The two then re-entered the car and drove to the truck stop’s convenience store. Lucero followed and observed Marrufo enter the store, after which the car left the truck stop. Suspecting narcotics smuggling, Lucero requested assistance from border patrol agent Gilbert Almanza, who arrived approximately 15 minutes later. The two officers observed Marrufo leave the store and enter the cab of the truck to which he had earlier delivered the two bags. The officers approached the truck and displayed their police credentials. Marrufo was in the driver’s seat and consented to a search of the truck, during which Almanza’s canine alerted Almanza to the presence of narcotics. Marrufo summoned Acosta, who exited the truck’s sleeper compartment. A hidden compartment was discovered that contained 40 bundles of cocaine weighing just over 86 pounds and worth approximately $500,000. Before Acosta’s trial, Marrufo pleaded guilty. In addition to providing a statement articulating the factual basis of his guilty plea, Marrufo made an additional “safety-valve” statement to qualify for a sentence reduction: He said he had been employed in June by the trucking company owned by Acosta’s brother and had driven for the company without incident until October, when Acosta approached him with the proposition of making additional money by smuggling cocaine. Initially hesitant, Marrufo agreed when Acosta demonstrated the sophistication of the truck’s hidden compartment. After Marrufo agreed to help smuggle cocaine, he drove with Acosta to El Paso. At the truck stop another party called them, as planned, with instructions for picking up the drugs. Marrufo met the courier, whom he did not know, and helped transfer two large bags of cocaine from the courier’s car to Acosta, who was waiting in the truck’s cab. Marrufo purchased a wrench from the convenience store, which Acosta used to open the compartment where the drugs were concealed. Lucero and Almanza arrested them shortly thereafter. The prosecution called Marrufo as a government witness at Acosta’s trial. Marrufo testified that he was a team driver with Acosta and that the purpose of their visit to the truck stop was to pick up cocaine. He said Acosta was the only other person in the truck. After answering questions about his own involvement in the offense, he refused to answer several questions about Acosta’s direct participation in the crime. Several of these questions referenced Marrufo’s safety-valve statement and the statement that was the factual basis of his guilty plea. Acosta did not object to the questions. On cross-examination Marrufo did not refuse to answer any of Acosta’s questions. Acosta probed Marrufo’s motives in making his prior statements. Acosta elicited testimony over the government’s objection that Marrufo believed that he would receive a more lenient sentence if he implicated Acosta. The court found that Acosta sought to impeach Marrufo by illustrating a motive to lie. Acosta did not cross-examine Marrufo about the portions of his prior statements that implicated Acosta. The government moved to admit Marrufo’s safety valve statement, and the court admitted it with a limiting instruction, finding that Acosta’s questioning had opened the door to the evidence Lucero was recalled to testify about statements Marrufo made during his safety valve debriefing. Acosta made his first Sixth Amendment objection at that point, which was overruled because the court found that Acosta opened the door to the admission of those portions of the statements that bore directly on Marrufo’s cross-examination testimony. On the final day of trial, Acosta made an unsuccessful Sixth Amendment objection to the government’s initial questioning of Marrufo. Acosta was convicted of conspiring to possess with the intent to distribute, and possession with the intent to distribute, five kilograms or more of cocaine. HOLDING:Affirmed. Acosta, the court stated, asserted that the government’s questioning of Marrufo about his prior statements, during which Marrufo refused to answer some of the questions, violated the confrontation clause. Acosta did not object when the state asked him about Marrufo’s statements, so the court reviewed admission of the statements for plain error. The confrontation clause of the Sixth Amendment guarantees the right to confront hostile witnesses. Crawford v. Washington, 541 U.S. 36 (2004) sets the parameters of this right: It bars the admission of out-of-court testimonial statements unless the defendant had the opportunity to cross-examine the witness. If Marrufo had steadfastly refused to answer all questions about Acosta’s involvement, had denied making the prior statements, and had refused to answer questions on cross-examination, the court stated that it might face a Crawford problem under which Acosta might be entitled to relief, even under the plain-error standard. In fact, if Marrufo had refused to answer a single question on cross-examination, Acosta’s Crawford complaint perhaps would have succeeded. But Marrufo acknowledged Acosta’s presence during the offense and acknowledged making the prior statements. Both of these subjects could be reached on cross-examination, the court stated. Acosta made a tactical decision to avoid these questions, and Marrufo answered every question he was asked on cross-examination, the court noted. Thus, the court held that Crawford did not apply. OPINION:Smith, J.; Smith, Benavides and Prado, J.J.

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