United States v. Regalado

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 20, 2021
• Docket: 20-5024
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

January 20, 2021 UNITED STATES COURT OF APPEALS Christopher M. Wolpert Clerk of Court TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 20-5024 v. (D.C. No. 4:19-CR-00114-CVE-1) AGUSTIN NIETO REGALADO, also (N.D. Okla.) known as Marcos Diaz,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TYMKOVICH, Chief Judge, MURPHY and HARTZ, Circuit Judges.

Agustin Regalado went to trial on two separate federal criminal counts, one

for attempted coercion and enticement of a minor and the other for possession of

a false permanent resident card. Although these charges were tried at the same

trial and before the same jury, they are factually and legally wholly unrelated.

This is not uncommon. Sometimes the charges brought by the government

against a criminal defendant are related, and other times they are not. When a

criminal defendant is charged with unrelated crimes and then goes to trial, the

* This case was submitted on the briefs. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. jury will inevitably hear evidence that is relevant to one charge and irrelevant to

the other.

That is what happened here. The district court ruled that evidence of

Regalado’s past acts of child molestation was admissible at trial in connection

with the enticement count under Federal Rule of Evidence 414. Per this rule, in

criminal child molestation cases, “evidence that the defendant committed any

other child molestation” is admissible. This rule further explains that this

evidence “may be considered on any matter to which it is relevant.” Regalado

asks this court to deem the admission of such compound evidence per se plain

error when a district court fails to give a limiting instruction prohibiting the jury

from considering it specifically as to an unrelated count. In his view, the jury

instructions here limiting the jury’s consideration of the evidence to “relevant”

matters were not good enough.

We disagree and affirm Regalado’s conviction of possession of a false

lawful permanent resident card.

I. Background

After the mother of an 11-year-old girl discovered a message from a

middle-aged man on her daughter’s phone, she began messaging him as her

daughter. The mother discovered that the man, Regalado, had molested her

daughter two years prior when they were living in the same house. Regalado also

messaged that he wanted to see her daughter, to which the mother, still pretending

-2- to be her daughter, responded, “Hey, you know, I’m only 11 years old.” R.,

Vol. II at 53. Regalado said that he knew her daughter was only 11 and told her

not to tell anyone.

The mother took her daughter’s phone to the police. Acting as the

daughter, the police set up a meeting with Regalado at a QuikTrip to arrest him.

Regalado showed up as planned, and when the officers approached him sitting in

his vehicle, his phone was open to his conversation with the daughter. Regalado

was arrested.

After his arrest, the police looked through his wallet. In it they discovered

multiple forms of identification—two permanent resident cards with different

birth dates, a border crossing card, and a Mexican voter credential card—bearing

multiple names—Marcos Diaz, Marcos Perez-Diaz, and Agustin Nieto Regalado.

All the cards bore Regalado’s photograph. The alien registration number on one

of the permanent resident cards was associated with a woman from Trinidad and

Tobago, indicating it was counterfeited.

Regalado was charged with two separate and unrelated counts:

(1) Attempted Coercion and Enticement of a Minor in violation of 18 U.S.C.

§ 2422(b); and (2) Possession of False Lawful Permanent Resident Card in

violation of 18 U.S.C. § 1546(a). Both of his charges proceeded to trial, and each

was tried before the same jury. Prior to trial, the district court ruled that certain

evidence of Regalado’s past acts of child molestation was admissible pursuant to

-3- Federal Rule of Evidence 414. Just before the evidence’s admission at trial, the

district court gave the following limiting instruction:

You are about to hear testimony of other acts of alleged child molestation committed by the defendant against D.F. This testimony can be considered for its bearing on any matter to which it is relevant, including defendant’s motive, intent, plan, and absence of mistake but is not sufficient in itself to prove guilt of the present charges. The defendant is not on trial for any act, conduct, or offense not charged in the indictment.

R., Vol. II at 61. The jury instructions also reiterated these points:

You are instructed that a separate crime or offense is charged in each count of the indictment. Each crime or offense as charged and the evidence applicable thereto, should be considered separately, and a verdict of guilty or not guilty as to each count or offense should likewise be considered separately. Of course, some evidence may pertain to more than one count.

The fact that you may find defendant guilty or not guilty as to the crime or offense charged in one count should not control your verdict with reference to the other count.

* * *

You have heard testimony of other acts of alleged child molestation committed by the defendant against D.F., M.S., and T.S. This testimony can be considered for its bearing on any matter to which it is relevant including defendant’s motive, intent, plan, and absence of mistake, but is not sufficient in itself to prove the guilt of the present charges. The defendant is not on trial for any act, conduct, or offense not charged in the indictment.

R., Vol. I at 68, 83.

-4- Regalado failed to request more specific jury instructions in his proposed

jury instructions or to object to the final jury instructions. He was convicted on

both counts.

II. Analysis

Regalado argues that the jury instructions’ failure to limit the jury’s

consideration of the past child molestation evidence to Count One was plain error.

As a result, he asks the court to vacate his conviction of Count Two and remand

for a new trial.

Regalado did not object to the jury instructions below. As a result, he can

only prevail on appeal if he satisfies the plain error standard of review. The party

seeking relief under the plain error standard must show “(1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Wireman, 849 F.3d 956, 962 (10th Cir. 2017) (internal quotation marks omitted).

This standard is difficult to meet, and the court will only find it satisfied “when

an error is particularly egregious, and the failure to remand for correction would

produce a miscarriage of justice.” United States v. Mann, 786 F.3d 1244, 1249

(10th Cir. 2015).

A. Plain Error

Regalado fails to show the jury instructions adopted by the district court

constitute a plain error. He cites no cases, Tenth Circuit or otherwise, in support

-5- of his argument. Instead, he focuses on the inadmissibility of his past acts of

child molestation as to Count Two. He also asserts that as a result of this

inadmissibility, unless child molestation evidence is explicitly limited to the

relevant crime by a jury instruction, then a conviction of any other unrelated

crime in the same trial almost automatically fails plain error review.

Regalado is correct that evidence of his past acts of child molestation is

irrelevant and extremely prejudicial as to his unrelated charge of possession of a

false lawful permanent resident card. That does not, however, prevent its

admission at his trial for another proper purpose, like for consideration as to his

charge of attempted coercion and enticement of a minor—a charge to which the

evidence is highly relevant and that enables its admission per Federal Rule of

Evidence 414. 1

The district court’s limiting instructions repeatedly directed the jury to only

consider the past child molestation evidence “for its bearing on any matter to

which it is relevant.” R., Vol. I at 68, 83. And here, it is common sense that

child molestation is irrelevant to whether Regalado possessed a false permanent

resident card.

1 Federal Rule of Evidence 414(a) provides: “In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.”

-6- Although Regalado’s point is well-taken that generally, society has an

extreme disdain for child molesters, that does not mean it is impossible for a juror

to follow the district court’s instructions and only consider child molestation

evidence for relevant purposes. And without evidence to the contrary, we

presume a jury followed the district court’s instructions. See Lay v. Royal, 860

F.3d 1307, 1318 (10th Cir. 2017). Thus, Regalado does not satisfy his burden to

show that the district court’s failure to give more specific jury instructions was

plain error. His conviction of Count Two is thus affirmed. 2

B. Substantial Rights

Even if the jury instructions constitute a plain error, Regalado’s conviction

of Count Two should still be affirmed because he has not shown that the alleged

error affected his substantial rights. “An error seriously affects [a] defendant’s

substantial rights . . . when the defendant demonstrates that there is a reasonable

probability that, but for the error claimed, the result of the proceeding would have

been different.” United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th

2 It is unclear if a limiting instruction in these circumstances is even required with the admission of Federal Rule of Evidence 414 evidence. Compare Fed. R. Evid. 404(b) (prohibiting evidence of another act to show propensity unless it is admissible for another purpose, like to prove motive, opportunity, intent, or absence of mistake) with Fed. R. Evid. 414 (evidence of prior acts of child molestation “may be considered on any matter to which it is relevant”); see United States v. Bartunek, 969 F.3d 860, 864 (8th Cir. 2020) (finding no limiting instruction is required); United States v. Resnick, 823 F.3d 888, 896 (7th Cir. 2016) (same); see also United States v. Chaco, 520 F. App’x 694, 697 (10th Cir. 2013) (unpublished) (finding no plain error where a district court failed to give a Federal Rule of Evidence 414 limiting instruction sua sponte).

-7- Cir. 2014) (internal quotation marks omitted). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” United States v.

Trujillo, 960 F.3d 1196, 1201 (10th Cir. 2020), petition for cert. filed (Oct. 26,

2020) (No. 20-6162).

The government presented ample evidence of Regalado’s guilt of Count

Two at trial. To secure a conviction of 18 U.S.C. §1546(a) for possession of a

false lawful permanent resident card, the government must prove beyond a

reasonable doubt that the defendant (1) possessed a document, (2) prescribed by

statute or regulation for entry into or as evidence of authorized stay or

employment in the United States, (3) that is forged, counterfeited, altered, or

falsely made, and (4) the defendant knows is forged, counterfeited, altered, or

falsely made.

As to the first two elements of Count Two, the government presented

evidence that Regalado was the only one in the vehicle when he was arrested and,

after his arrest, a wallet was found on him containing a permanent resident card

with his photograph and the name “Marcos Diaz.” R., Vol. II at 103, 106–08. At

trial, the parties stipulated that a permanent resident card “is in fact a document

prescribed by statute or regulation for entry into or as evidence of authorized stay

or employment in the United States.” R., Vol. I at 87. This evidence showed that

Regalado possessed a permanent resident card prescribed by statute for entry into

the United States.

-8- As to the third element of Count Two, the government presented testimony

that the alien registration number on the permanent resident card was associated

with a woman from Trinidad and Tobago. R., Vol. II at 114. This discrepancy

indicated that the card was counterfeited.

Finally, as to the fourth element of Count Two, the government presented

testimony that the wallet also contained a border crossing card and a Mexico

voter credential card with Regalado’s true name. Id. at 108–09. The parties

further stipulated that Regalado’s true name was “Agustin Nieto Regalado.” Id.

at 114. Thus, the simultaneous possession of a border crossing card under

Regalado’s true name and a permanent resident card under another name (Marcos

Diaz) supported an inference that Regalado knew the permanent resident card in

his possession was counterfeited.

This government evidence supported each element of Count Two. Indeed,

Regalado concedes as much by stating in his brief that “[t]he evidence of guilt in

Count Two was more than sufficient for conviction.” Aplt. Br. at 14.

Notwithstanding this concession, Regalado contends the alleged error affected his

substantial rights because “[t]he child molestation evidence available to the jury

while adjudging Count Two was arresting enough to lure a juror into a sequence

of bad character reasoning.” Id. at 12 (internal quotation marks omitted). He

continues:

-9- Because of the particularly extreme disdain that people have for child molesters, a reasonable likelihood exists that the jury relied on a character for criminal propensity to find Mr. Regalado guilty of Count Two, rather than the basis submitted by the government.

Id. at 13.

Boiled down, Regalado argues that evidence of child molestation is so

prejudicial that any time it is admitted at trial in a case with an unrelated count,

there is a reasonable likelihood that a jury will improperly rely on that evidence

to convict the defendant of the unrelated count. But again, this reasoning ignores

the district court’s jury instructions to only consider such evidence for relevant

purposes. And it is common sense that child molestation is irrelevant to whether

Regalado possessed a false permanent resident card. We trust that the jury here

possessed such common sense and followed the instructions given by the district

court. See Lay, 860 F.3d at 1318.

The government presented evidence of the elements of Count Two, which

even Regalado concedes was enough for his conviction. But he still asserts the

alleged error affected his substantial rights because of the inherently prejudicial

nature of child molestation evidence. This assertion does not, however,

undermine our confidence in the outcome, see Trujillo, 960 F.3d at 1201, as it

ignores Regalado’s concession that the government provided enough evidence to

convict him of Count Two. Indeed, with overwhelming evidence of guilt, there is

-10- no reasonable probability that, but for the alleged error, the outcome of the

proceeding would have been different. See Rosales-Miranda, 755 F.3d at 1258.

Without a showing that the alleged error affected his substantial rights,

Regalado cannot satisfy the plain error standard of review.

III. Conclusion

The evidence of Regalado’s past acts of child molestation undoubtedly

would be inadmissible in a trial on Count Two alone. But sometimes, unrelated

charges are tried together. If a defendant is concerned about prejudice from one

charge bleeding into an unrelated charge, he can ask the district court to bifurcate

the trial. And if the defendant does not do so, or if the district court denies his

bifurcation motion, the system has additional safeguards built in to prevent such

bleeding, like pretrial admissibility hearings, voir dire, and limiting instructions.

Before the district court, Regalado did not file a bifurcation motion, nor did

he propose the more specific jury instructions he now urges this court to fault the

district court for not adopting sua sponte. We decline to adopt the sweeping rule

proposed by Regalado that jury instructions in these circumstances must be more

specific, especially because we find no error in the district court’s instructions

that the jury only consider the past child molestation evidence for relevant

purposes, and common sense dictates that consideration of child molestation

evidence as to a charge for possession of a false permanent resident card would

not be a relevant purpose.

-11- In light of the above, we AFFIRM Regalado’s conviction.

Entered for the Court

Timothy M. Tymkovich Chief Judge

-12-