Appellate Case: 23-1318 Document: 010111087809 Date Filed: 07/31/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-1318 (D.C. No. 1:22-CR-00213-CMA-2) JAMES DAVID TRUJILLO, JR., (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _________________________________
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
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 23-1318 Document: 010111087809 Date Filed: 07/31/2024 Page: 2
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.
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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
1 Mr. Nazarenus did not know Mr. Connolly but later identified him in a photo lineup. 3 Appellate Case: 23-1318 Document: 010111087809 Date Filed: 07/31/2024 Page: 4
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
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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
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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,
2 Mr. Trujillo filed his notice of appeal outside the fourteen-day deadline for appealing in a criminal case. See Fed. R. App. P. 4(b)(1)(A). But in criminal cases, the deadline for filing an appeal “is not jurisdictional; instead, it is an inflexible claim-processing rule.” United States v. Lantis, 17 F.4th 35, 38 n.3 (10th Cir. 2021) (internal quotation marks omitted). “Accordingly, we must enforce the rule only when the government properly invokes it.” Id. (brackets and internal quotation marks omitted). The Government has not invoked Federal Rule of Appellate Procedure 4(b)’s time bar, and under the facts of this case, we decline to apply it sua sponte. See id. (declining to sua sponte invoke Rule 4(b)’s time bar because the case presented “no inordinate delay or problems of judicial resources or administration”).
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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.
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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
necessary to strike all or a part of the direct testimony of that witness.” Id. But “not
every invocation of the Fifth Amendment” results in a Sixth Amendment violation.
Id. at 1122.
To determine whether a witness’s testimony may be used against the
defendant, “courts have drawn the line between cases in which the defendant is
precluded from inquiring into collateral matters bearing only on the credibility of the
witness and those cases in which the defendant is precluded from inquiring into
matters about which the witness testified on direct examination.” Id. For “collateral
matters bearing only on the credibility of the witness,” there is no Sixth Amendment
violation if the defendant has “effective alternative means available to him to
impeach the credibility of” the witness. Id. 1122–23.
United States v. Nunez is a helpful comparison. There, the defendant was
accused of possessing counterfeit money. Id. at 1118. At trial, a government witness
testified that the defendant helped him purchase counterfeit money. Id. at 1119.
During cross-examination, the witness admitted to telling a federal agent “that he had
purchased the counterfeit money to help himself out in a pending drug case.” Id.
at 1122. Defense counsel asked the witness to explain “how the money would help
him on the pending state drug charge,” but the witness invoked the Fifth Amendment.
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Id. The district court would not order the witness to answer, and the defendant
appealed, arguing his confrontation rights were violated. Id. at 1121–22.
On appeal, we concluded that the defendant had been prohibited from seeking
“information that was collateral to the matters raised on direct examination.” Id.
at 1122. We next concluded that the defendant’s Sixth Amendment rights were not
“materially prejudiced,” id. at 1123, because the defendant “had ample opportunity to
otherwise challenge the witness’s lack of credibility,” id. at 1122. The defendant
challenged the witness’s credibility by cross-examining him about his criminal
record, his plea-bargain agreement with the government, his past lies, and
“discrepancies” between his statements to law enforcement and his trial testimony.
Id. at 1122. And “[m]ore importantly,” the defendant was able to obtain the
“impeaching evidence” through a federal agent who testified that the witness
intended to give the counterfeit money to law enforcement in exchange for help with
his pending drug case. Id. at 1123. With this evidence, the defendant was able to
effectively impeach the witness, and the jury had “sufficient information upon which
to make a discriminating appraisal of [the witness’s] credibility.” Id.
Under Nunez, we must affirm the district court here. Like in Nunez,
Mr. Trujillo sought information about pending charges that were “collateral to the
matters raised on direct examination.” See id. at 1122. Also like in Nunez,
Mr. Trujillo “had ample opportunity to” challenge Mr. Nazarenus’s credibility. See
id. Mr. Trujillo challenged Mr. Nazarenus’s credibility by asking about his lies to the
grand jury, his plea bargain, the inconsistencies between his prior statements to law
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enforcement and his trial testimony, and the fact that he was not arrested despite
having outstanding warrants. And most importantly, Mr. Nazarenus admitted that the
Government did not try to revoke his bond although he “picked up new cases.” ROA
Vol. III at 677. With this admission, testimony about the pending charges became
unnecessary because the purpose of asking about the pending charges was to
demonstrate that the Government did not try to revoke Mr. Nazarenus’s bond.
Mr. Nazarenus’s testimony provided the desired evidence to support the
argument that Mr. Nazarenus would “do anything to save himself” and “received a
lot of benefits” in exchange for his testimony. Id. at 218–19. For this reason,
Mr. Trujillo “had effective alternative means” to impeach Mr. Nazarenus’s
credibility, and Mr. Trujillo’s Sixth Amendment rights were not “materially
prejudiced.” Nunez, 668 F.2d at 1123.
Mr. Trujillo, however, argues this case is like Davis, where the Supreme Court
concluded that limitations on a defendant’s cross-examination violated the Sixth
Amendment. 415 U.S. at 315–21. But in Davis, the witness’s invocation of the Fifth
Amendment resulted in such a “limited cross-examination” that the defendant could
not “make a record from which to argue why [the witness] might have been biased.”
Id. at 318. Mr. Trujillo, however, had ample opportunity to demonstrate why
Mr. Nazarenus might have been biased. Thus, Davis is inapposite.
Mr. Trujillo also attempts to distinguish Nunez, but his arguments are not
convincing. First, Mr. Trujillo argues that unlike the defendant in Nunez, he is not
trying to strike testimony—he merely “request[s] to recall” Mr. Nazarenus.
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Appellant’s Br. at 20; see also id. at 22 n.5. But in the district court, Mr. Trujillo did
ask the court to strike Mr. Nazarenus’s testimony. Moreover, Mr. Trujillo does not
explain why the Sixth Amendment analysis should change depending on the remedy
sought, nor does he explain what the different analysis should be.
Next, Mr. Trujillo contends that Nunez is distinguishable because the witness
in Nunez refused to answer only one question. Mr. Trujillo does not cite any authority
establishing a causal relationship between the number of times the Fifth Amendment
is invoked and the likelihood a Sixth Amendment violation has occurred. And
regardless, the holding in Nunez relied on a conclusion that the defendant had
satisfactory alternatives—a conclusion we also reach. See Nunez, 668 F.2d at 1122–
23.
Mr. Trujillo further argues the district court erred because unlike the defendant
in Nunez, he did not have an opportunity for recross-examination. In support of this
argument, Mr. Trujillo explains that after redirect, the district court “released
[Mr.] Nazarenus and adjourned for the day with no further discussion with counsel.”
Appellant’s Br. at 21. But Mr. Trujillo did not ask for recross-examination or object
when Mr. Nazarenus was excused. As a result, this issue is not preserved, and
Mr. Trujillo waived it by not arguing plain error. United States v. Leffler, 942 F.3d
1192, 1196 (10th Cir. 2019) (“When an appellant fails to preserve an issue and also
fails to make a plain-error argument on appeal, we ordinarily deem the issue waived
. . . and decline to review the issue at all—for plain error or otherwise.”).
Nonetheless, we perceive no error because Mr. Trujillo had sufficient opportunity to
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challenge Mr. Nazarenus’s credibility on cross-examination. See Mayes v. Gibson,
210 F.3d 1284, 1293 (10th Cir. 2000) (holding that although a defendant was not
permitted recross-examination, there was “no violation of the Confrontation Clause”
because “defense counsel had an opportunity to question the witness’ possible bias
during cross-examination”).
Finally, Mr. Trujillo faults the district court for “waiting to rule on the [Sixth
Amendment] issue” rather than addressing it before cross-examination. Appellant’s
Br. at 22. Even assuming the district court should have followed a different
procedure, Mr. Trujillo had an opportunity to develop evidence of Mr. Nazarenus’s
motives for testifying and thus challenge his credibility. See Nunez, 668 F.2d at 1123;
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the defense might wish.”).
In short, Mr. Trujillo had “ample opportunity” to challenge Mr. Nazarenus’s
credibility, so his Sixth Amendment right to effective cross-examination was not
violated. See Nunez, 668 F.2d at 1122.
B. Abuse of Discretion
Because Mr. Trujillo’s constitutional rights were not violated, we review the
district court’s refusal to recall Mr. Nazarenus for abuse of discretion. United States
v. Soares, 456 F.2d 431, 434 (10th Cir. 1972) (“The recalling of a witness for
additional cross examination is ordinarily within the sound discretion of the trial
court . . . .”). “A district court abuses its discretion only if its decision is arbitrary,
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capricious, whimsical or manifestly unreasonable, or if we are convinced that the
district court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” United States v. Parson, 84 F.4th 930, 937–38 (10th
Cir. 2023) (brackets and internal quotation marks omitted).
Mr. Trujillo does not argue that the district court abused its discretion by not
recalling Mr. Nazarenus. Instead, he argues that recalling Mr. Nazarenus would have
been “reasonable and would have struck an appropriate balance.” Appellant’s Br.
at 22. Even if that is true, it does not mean the district court “exceeded the bounds of
permissible choice” by not recalling Mr. Nazarenus. See Parson, 84 F.4th at 938
(quotation marks omitted). And because Mr. Trujillo had “ample opportunity” to
challenge Mr. Nazarenus’s credibility during cross-examination, it was not
unreasonable for the district court to decline to recall Mr. Nazarenus. See Nunez,
668 F.2d at 1122. Mr. Trujillo has not shown any abuse of discretion.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
Entered for the Court
Carolyn B. McHugh Circuit Judge