Federal District Court Opinions
U.S. v. CISNEROS, (S.D.Tex. 2006) UNITED STATES OF AMERICA
v. DORA CISNEROS. Civil No. B-02-191. United States
District Court, S.D. Texas, Brownsville Division. September
28, 2006
MEMORANDUM OPINION AND ORDER
ANDREW HANEN, District Judge
Before the Court is the Report and Recommendation of the
United States Magistrate Judge in which he recommended that
Petitioner’s Motion to Vacate, Set Aside, and Correct
Judgment and Sentence [Docket No. 1] be denied. That report
also recommended that the Government’s Motion to Dismiss
[Docket No. 5] be granted. Petitioner has filed lengthy and
detailed objections to the Magistrate’s rulings. [Docket
No. 21] Aside from the more straight-forward legal issues,
this case and Petitioner’s objections to the Report and
Recommendation present this Court with a somewhat unique
opportunity. In addition to other bases for Petitioner’s
motion to vacate pursuant to 28 U.S.C. § 2255, he
is, sometimes directly and sometimes more implicitly,
requesting this District Court to hold that the Fifth
Circuit Court of Appeals and subsequently the United States
Supreme Court violated her constitutional rights and/or
committed error. Rarely is a district court put in such a
position and it is necessary to explain the procedural
history of this matter to understand portions of the
Petitioner’s argument and how she has called upon this
Court to rule on the actions of the Supreme and Circuit
Courts.
I.
Background Facts and Procedural History
This case arises out of the 1993 murder of Joey Fischer, a
high school student at St. Joseph Academy in Brownsville,
Texas. During the spring of 1992 Fischer began dating
Cristina Cisneros, Page 2 a fellow high school student,
but ended the relationship shortly thereafter. Dora
Cisneros, Cristina’s mother, became upset about the
break-up and, after attempting to reunite the teens, went
to Maria Martinez, a local fortune teller (curandera), to
arrange for Fischer’s murder. Martinez asked one of her
other clients, Daniel Garza, to hire someone to kill
Fischer.
Garza discussed hiring a killer in several telephone
conversations with Martinez. According to Garza’s testimony
at trial he made some of those calls from Mexico. Garza
eventually hired Israel Olivarez and Heriberto “Eddie”
Pizana, who worked for the Cuellar crime family. On the
evening of March 2, 1993, a car with Mexican license plate
number “821 THE7” crossed from Mexico into Brownsville,
Texas. Later that night Pizana and Ramon Palomares, another
hit man for the Cuellar family, checked into the La Quinta
Inn in Brownsville and the receptionist registered their
car as a white Grand Marquis with a Mexican license plate
number of “821 TWEX” or “821 THE7” (the receptionist’s
handwriting was apparently difficult to decipher). Fischer
was shot and killed as he left his house for school the
next morning. Interestingly, a witness testified to passing
a white four-door car with a Mexican license plate near
Fischer’s home at the time of the murder. Shortly
thereafter, Garza and Pizana collected the money for the
hit from Martinez. Garza attempted to leave the money with
Pizana, but he insisted Garza return with him to the La
Quinta Inn and give the money directly to Olivarez. After
giving the money to Olivarez, Garza noticed that Olivarez
and Pizana had two cars — a white pickup truck with
a black stripe and a white Ford.
Cisneros was originally tried in state court, convicted of
capital murder, and sentenced to life in prison. The
Thirteenth Court of Appeals sitting in Corpus Christi
overturned the conviction, holding that the evidence was
insufficient to support a conviction. Cisneros v. State,
915 S.W.2d 217 (Tex.App. — Corpus Christi 1996) pet.
ref’d 935 S.W.2d 789 (Tex.Cr.App. 1996) (en banc). Page 3
The Court of Criminal Appeals affirmed, explaining that
despite the fact that Cisneros “wanted her daughter’s
former boyfriend dead[,] engaged a fortune teller [ ] to
find someone to kill him [and even] . . . supplied money,
information, and directions [to the fortune teller],” there
was not sufficient evidence to prove the individuals hired
by the fortune teller were actually the ones who committed
the crime. State v. Cisneros, 935 S.W.2d 789 (Tex.Crim.App.
1996).
Defendant was then tried and convicted under the federal
murder-for-hire statute, 18 U.S.C. § 1958, in the
United States District Court for the Southern District of
Texas. Cisneros appealed, arguing that: (1) there was not
“sufficient evidence to show that Cisneros met the
interstate/foreign commerce requirement for a federal
murder-for-hire conviction,” (2) a new trial was necessary
because the government elicited testimony about the state
court murder convictions, (3) the district court erred in
rejecting five of Cisneros’ proposed jury instructions, (4)
“the district court erred in admitting the evidence of
Fischer’s murder under Fed.R.Evid. 403,” (5) “the
conviction should be reversed because the district court
failed to maintain an appearance of impartiality in its
questioning of witnesses and comments made during the
trial,” and (6) the district court abused its discretion by
“admitting Moreno’s testimony under the co-conspirator
exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E).”
United States v. Cisneros, 194 F.3d 626 (5th Cir. 1999).
The Fifth Circuit affirmed the judgment of the district
court, rejecting each of Cisneros arguments. Id. The court
held that there was sufficient evidence for a jury to find
that Garza made phone calls from Mexico and that this was
enough to meet the interstate/foreign commerce requirement.
Id. at 635-36. The court rejected arguments that Cisneros
did not cause the telephone to be used “in furtherance” of
the murder, explaining that mere “but for” causation was
all that was required. Id. at 636. The court also pointed
out that “[b]ecause these telephone calls satisfy the
interstate nexus requirement, we Page 4 need not address
the more complicated issue, the car travel between Mexico
and Texas. Id. at 637. Turning to Cisneros’ arguments that
the government elicited testimony regarding the state court
proceedings, the Fifth Circuit held that “[t]he admission
of this testimony was not an abuse of discretion, since
there was no chance of any `significant impact’ on the jury
verdict.” Id. Evaluating each of the jury instructions
individually, the Fifth Circuit rejected each objection
lodged by Cisneros.[fn1] Addressing Cisneros’ argument that
the district court erred in admitting evidence of Fischer’s
murder, the court stated that Cisneros’ “offer to stipulate
to the shooting of Fischer did not reduce the probative
value of evidence of how Fischer’s parents found their son,
the pathologist’s testimony about Fischer’s autopsy, or
the photographs of Fischer’s corpse.” Id. at 639. “The
probative value of the challenged evidence, therefore, was
not substantially outweighed by the danger of unfair
prejudice.” Id. In response to Cisneros’ arguments that
“the district court failed to maintain an appearance of
impartiality,” the Fifth Circuit explained that “[a] trial
court has the discretion to clarify testimony, even if that
elicits facts harmful to the defendant.” Id. at 640. The
court further explained that any potential impartiality the
jury might have suspected was cured by the court’s
instruction that the it had no opinion on the case and the
jury should disregard any statements that would indicate
otherwise. Id. at 641. Finally, the court held that
admitting Moreno’s testimony under the co-conspirator
exception to the hearsay rule was not error because “[t]he
Page 5 government met its burden of proving the
co-conspirator exception to the hearsay rule by a
preponderance of the evidence” by showing Moreno was a
member of the Cuellar organization in which Palomares and
Olivarez worked as hit men. Id.
On petition for rehearing, the Fifth Circuit panel applied
different reasoning to certain arguments advanced by
Cisneros, but reached the same conclusion, affirming the
district court. United States v. Cisneros, 203 F.3d 333
(2000). In addressing Cisneros’ argument that “the evidence
did not establish that she caused the telephone to be used
`in furtherance’ of the murder-for-hire,” the court
abandoned its previous holding that “but for” causation was
all that was required, holding that Martinez’ constant
reminders during the telephone calls “facilitated” in
bringing the murder to fruition. Id. at 344-45. The court
also expanded on its previous holding that the district
court did not err in failing to instruct the jury “that the
use of the facility in foreign commerce had to have been
`in furtherance’ of the murder-for-hire,” explaining that
the standard in the Fifth Circuit is “facilitated” or “made
easier.” Id. at 346. Thus, even though Garza’s phone calls
to Martinez arguably may not have been “in furtherance” of
the murder-for-hire, the calls “facilitated” the murder
because they allowed Martinez to advance the plot to kill
Fischer. Id. Finally, the panel elaborated on its holding
that the standard for causation argued by Cisneros was
inconsistent with Fifth Circuit precedent. It ultimately
decided Cisneros’ proposed instruction was incorrect,
finding no error on the part of the district court. Id. at
347. Thus, although the court’s decision to grant a
rehearing had the effect of vacating the opinion found at
194 F.3d 626, the only pertinent substantive changes were
those discussed above.
On February 24, 2000, the Fifth Circuit, sua sponte,
granted a rehearing en banc. United States v. Cisneros, 206
F.3d 448 (5th Cir. 2000). Although Cisneros had filed a
motion for rehearing Page 6 en banc on virtually every
point it had presented to the panel on two occasions, the
court explained that the en banc hearing was granted to
reconcile the dicta that “to satisfy the jurisdictional
element, a facility must be used in an inter state
fashion,” found in United States v. Cisneros, 203 F.3d 333
(5th Cir. 2000), vacating 194 F.3d 626 (5th Cir. 2000),
with the holding that intra state use is sufficient, found
in United States v. Marek, 198 F.3d 532 (5th Cir. 1999).
United States v. Marek, 238 F.3d 310, 313 (5th Cir. 2001).
As pointed out in Cisneros’ Petition, the en banc court
chose only to address the conflict between Marek and
Cisneros regarding the use of interstate commerce under the
murder-for-hire statute.
Because the Fifth Circuit’s decision to rehear the case en
banc “had the collateral effect of vacating both panel
decisions,”[fn2] Cisneros now argues in this § 2255
proceeding that she was denied her right to an appeal by
the court’s failure to reinstate either of the panel
decisions. [Docket No. 1] The en banc decision was not the
end of the procedural story as Cisneros moved for an
additional rehearing of the en banc opinion on the
remainder of her points of error and eventually sought
relief from the United States Supreme Court, where her
Petition for Writ of Certiorari was denied. United States
v. Garcia Cisneros, 534 U.S. 813 (2001). In her Petition
before the Supreme Court, Cisneros asked that it “grant
review, vacate the Fifth Circuit en banc opinion as it
relates to Petitioner, and remand the case with
instructions that, since the Marek en banc decision did not
address any of the material issues in Petitioner’s case,
the Fifth Circuit should reinstate the second Cisneros
panel opinion, except as it addresses the issue taken up in
the en banc opinion.” Pet. for Writ of Cert., No. 00-1526,
2001 WL 34125493 (Apr. 4, 2001). Her Petition for Writ of
Certiorari was denied. Garcia Cisneros v. United States,
534 U.S. 813 (2001). Page 7
The record before this Court reveals three significant
facts: (1) the Fifth Circuit’s first and second panel
decisions addressed each issue raised by Cisneros and
denied each one in turn; (2) the Fifth Circuit’s second
panel decision at 203 F.3d 333 vacated the first and was
itself vacated by the court’s en banc opinion in United
States v. Marek, 238 F.3d 310 (2001); and (3) both the
Fifth Circuit sitting en banc and the United States Supreme
Court were made aware of this situation, but denied
Cisneros relief. Having been denied review by both of those
courts, Cisneros now attempts to reargue before this Court
most of the same issues she has already unsuccessfully
argued to the Fifth Circuit.
II.
Petitioner’s Objections
Petitioner’s objections to the Report and Recommendation
can be divided into four somewhat overlapping categories.
The first category is one of a factual nature, but it is
used by Petitioner throughout her legal objections. It
concerns the Fifth Circuit statement in its en banc opinion
that it was undisputed that “the hit men traveled from
Mexico to Brownsville, Texas where they shot and killed
Cisneros’s intended victim.” 238 F.3d at 314. The second
group of objections are more legal in nature and are
centered around the Magistrate’s use of the “law of the
case” doctrine in overruling certain objections. The third
category of complaints deals with her claim that no
appellate court ruled on the objections raised in her
initial appeal. The fourth category of objections is
focused upon the trial court’s instructions to the jury
— especially those relating to the causation and
required relationship instructions.
A. Factually-Based Allegations
1. International Travel of the Hit Men Page 8
As stated above, the Fifth Circuit maintained in its en
banc opinion:
The relevant facts in Cisneros also are undisputed at
this juncture. . . . The hit men traveled from Mexico to
Brownsville, Texas where they shot and killed Cisneros’s
intended victim.[fn3] A jury convicted Cisneros, and she
appealed. A panel of this Court concluded that a
reasonable jury could have found that: (1) the fortune
teller had participated in international calls as
Cisneros’s agent; and (2) that those calls were
sufficiently connected to the murder to be “in
furtherance” of that crime. That panel, therefore,
affirmed the conviction.
Id. at 314.
Petitioner goes to great lengths to attack the
“undisputed” statement that the hit men traveled from
Mexico to Brownsville, Texas. She disputes both the factual
accuracy of the statement and the fact that it is
undisputed. She details the testimony that seems to support
the conclusion that the hit men, rather than merely
crossing the Matamoros/Brownsville border, actually came
down to Brownsville from Dallas where they had been engaged
in various enterprises for the Cuellar crime organization.
Most of this evidence was adduced at trial by the
Government and was argued by the Government in its
presentation to the jury. Petitioner concludes that the
Fifth Circuit was “dead wrong.”
The importance of this alleged factual error, if it be so,
to the Petitioner’s point-of-view, is that if this factual
nexus does not exist, then 18 U.S.C. § 1958 cannot
be properly applied to her. This presents this Court with
at least two interesting questions: First, can a district
court overrule “factual findings” made by a Circuit Court
of Appeals? Second, in this case, does it matter if the
Court of Appeals was in fact “dead wrong”? Obviously, the
Fifth Circuit can and has been reversing factual findings
of district courts when they are “`left with a definite and
firm conviction that a mistake has been made.'” Mumblow v.
Monroe Broadcasting, Inc., 401 F.3d 616, 622 (5th Cir.
Page 9 2005) (quoting Otto Candies, L.L.C. v. Nippon Kaiji
Kyokai Corp., 346 F.3d 530, 533 (5th Cir. 2003)).
Petitioner cites no authority which would support a
district court’s overruling either a factual statement made
by a Fifth Circuit panel or made by the Court sitting en
banc. While some courts might even relish the chance
presented by this novel situation, this Court sees no need
to avail itself of this unique opportunity.
The Circuit, in its en banc consideration of Petitioner’s
appeal, was primarily concerned with a budding conflict
between two of its panels concerning the second prong of 18
U.S.C. 1958, which proscribes paying another to commit
murder only if the defendant “uses or causes another
(including the intended victim) to use the mail or any
facility in interstate or foreign commerce.” The panel in
Petitioner’s case had suggested that a facility must be
used in an interstate fashion (and, therefore, presumably
intrastate use of a facility would not suffice even if that
facility is generally an interstate commerce facility). The
panel in United States v. Marek, 198 F.3d 532 (5th Cir.
1999), while divided, held that wholly intrastate use of an
interstate facility was sufficient to support § 1958
jurisdiction. The Circuit in the consolidated en banc
appeal chose to follow the rule suggested by the Marek
majority to the effect that the use of an interstate
commerce facility “satisfies the jurisdiction requirement
of prong two of § 1958, regardless of whether its
use was inter state or wholly intra state.
The Circuit noted that the Marek panel had even considered
the panel’s discussion in Cisneros, but the Marek panel
reasoned that due to the international telephone calls
— “an activity that indisputably satisfied the
jurisdictional element” — the discussion in Cisneros
was dicta. The en banc opinion also described the
statements by the Cisneros panel as dicta and, in doing so,
impliedly adopted Marek’s reasoning. Id. at 313. Page 10
It is that same reasoning that relieves this Court of its
need to consider the factual accuracy of the
above-referenced Fifth Circuit description of the path
followed by the hit men or whether that path was a disputed
issue. That statement is merely dicta in the en banc
opinion. In the very paragraph containing the complained of
statement the court explained that the panel decision was
based upon their conclusion that the international phone
calls were a sufficient nexus. Id. at 314.
The en banc court then concludes:
In Cisneros, on the other hand, even if we assume
arguendo, that the statute [18 U.S.C. 1958] should be
accorded the narrowest interpretation possible, we must
affirm Cisneros’ conviction on the strength of the
international (foreign) telephone calls.
Id.
2. The Telephone Calls[fn4]
Clearly, the en banc panel relied on the phone calls for
the jurisdictional basis, rather than the hit men. Perhaps
in recognition of that, Petitioner also questions the phone
calls. Petitioner attacks the phone calls on both a factual
and a legal basis. The factual basis will be discussed
here, while the legal basis (which primarily focuses on the
instructions given to the jury and as a basis for an
ineffective assistance claim) will be discussed below.
Factually, the controversy centers around witness Daniel
Garza and the phone calls he made to Maria Martinez,
Cisneros’ curandera. These calls are, of course, the basis
of the jurisdictional nexus as discussed above and in both
panel decisions. Petitioner claims that the prosecution
mislead the grand jury as to whether the phone calls were
collect. Garza testified at trial that he did not Page 11
remember exactly, but could not have made more than one
collect call. The witness was questioned about these
inconsistencies at trial, so the jury could judge his
memory and credibility. The Magistrate Judge’s conclusions
concerning this topic and his analysis of the applicable
legal factors are accurate and are hereby adopted.
B. Ineffective Assistance
Next, Cisneros claims that these phone conversations, and
their admission at trial, is the basis for an ineffective
assistance of counsel claim. Her theory is that her counsel
should have: (1) objected to the transcripts; (2)
cross-examined more intensively in hopes of proving the
calls originated in Texas rather than Mexico; (3)
emphasized Garza’s inconsistencies; (4) requested an
instruction demanding the jury find the phone calls be
sufficiently related to the murder and/or; (5) insisted on
a causation instruction. Again, the Magistrate Judge’s
analysis of these allegations is correct and is hereby
adopted.
Cisneros follows this argument with one complaining about
her appellate counsel and their alleged failure to: (1)
challenge the propriety of the foreign commerce
instruction; (2) raise causation as an issue; and (3) raise
the alleged “misconduct” before the jury. This court adopts
the opinion of the Magistrate Judge on these items. This
Court understands why counsel for Cisneros puts emphasis on
Agent Church’s recollection that the Mexico telephone calls
were collect and compares that to Mr. Garza’s testimony
that they were probably not collect (or at most one was
collect). Cisneros, however, leaps to three conclusions
which do not necessarily follow: (1) that Agent Church lied
to the grand jury; (2) that the absence of collect calls
necessarily destroys the international nexus which is the
basis for jurisdiction; and (3) that these two events,
combined with the failure of counsel to either successfully
exploit them, either at trial or on appeal, equates to
Page 12 ineffective assistance of counsel.
Initially, this Court notes that direct (non-collect)
calls such as those recounted by Mr. Garza at trial would
be sufficient under the murder for hire statute as per
controlling Fifth Circuit authority. Secondly, an agent’s
recollection of, or notes concerning, an event can differ
from a witness without either the agent or the witness
committing perjury. The important factor is that both
witnesses’ testimony detailed international phone calls in
which the murder plot was embraced. This is not only the
conclusion reached by this Court, but also the one reached
by the Fifth Circuit in both vacated opinions. Cisneros,
203 F.3d at 343; Cisneros, 194 F.3d at 636. Further, it is
not true that any of the items complained of would support
a claim of ineffective assistance of counsel. The
Magistrate Judge’s opinion details the evidentiary showing
what one must make to succeed on a collateral attack based
upon ineffective assistance of counsel.[fn5] Tactical
strategy and determinations, even those which later prove
to be in error, do not suffice. Rather, counsel’s
performance is considered effective so long as it is based
upon adequate investigation. Further, there must be a
reasonable probability (not a mere possibility) that the
result would have been different, but for the alleged
errors. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.
1999). This Court adopts the Magistrate Judge’s conclusions
with regard to the claims of ineffective assistance of
trial counsel.
Petitioner also attacks the performance of her appellate
counsel on the basis of the failure to adequately challenge:
(1) the required relationship or “furtherance” instruction;
(2) the omission of the causation instruction; and (3) the
failure to raise prosecutorial misconduct. Again, the Page
13 Magistrate Judge’s Report and Recommendation discusses
in detail why § 2255 relief should not be
granted.[fn6] As such, this Court will not retrace those
footsteps. Suffice to say that such claims have been
considered in detail and found to be wanting.
C. Law of the Case
While this Court has considered the Magistrate Judge’s
Report and Recommendation regarding Petitioner’s objections
to lack of a causation and required relationship
instruction, it cannot totally accept his recitation of the
law and applicable facts. With regard to the Cisneros’s
argument that the jury should have been instructed about
the required relationship between foreign commerce and the
murder for hire scheme, the Magistrate Judge relied upon
the vacated Fifth Circuit opinions as establishing a
prevailing law of the case standard. The Magistrate Judge
accurately described the law of the case doctrine. Reliance
on this doctrine, however, is questionable when the
decision establishing such “law” has been vacated.
“The doctrine of the law of the case directs that a
decision of an appellate court on an issue of law, unless
vacated or set aside, governs the issue during all
subsequent stages of litigation in the nisi prius court and
thereafter on any further appeal.” Commercial Union Ins.
Co. v. Walbrook Ins. Co., 41 F.3d 764, 769 (1st Cir. 1994);
see also Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996)
(citing Moore’s Federal Practice ¶ 0.404 (2d ed.
1993)). It is well established that reconsideration en banc
vacates a panel’s decision. 5TH CIR. R. 41.3 (stating that
the “effect of granting a rehearing en banc is to vacate
the panel opinion”); see, e.g., Hooten v. Jenne, 786 F.2d
692, 695 (5th Cir. Page 14 1986); Longoria v. Wilson, 730
F.2d 300, 304 (5th Cir. 1984). A vacated decision, while
persuasive, is no longer binding precedent. Marathon Oil
Co. v. Ruhrgas, 145 F.3d 211, 225 n. 23 (5th Cir. 1998).
While arguments could be made to the contrary, most courts
hold that a vacated opinion is deprived of its status such
that it cannot be used to trigger the application of the
law of the case doctrine. See, e.g., Johnson v. Bd. of
Educ. of the City of Chicago, 457 U.S. 52, 53-54 (1982);
Brown v. Bryan City, OK, 219 F.3d 450, 453 n. 1 (5th Cir.
2000); Creighton v. Anderson, 922 F.2d 443, 449 (8th Cir.
1990); Dorsey v. Cont’l Cas., Co., 730 F.2d 75 (11th Cir.
1984); Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177-78
(2d Cir. 1967). That being the case, this Court finds the
Magistrate Judge’s use of the law of the case doctrine to
be ill-advised and specifically chooses not to adopt or
follow this line of reasoning. As such, this Court does not
consider the vacated opinions to be controlling in this
matter.
Despite the fact that the opinions upon which the
Magistrate Judge relied were vacated (and thus do not
command “law of the case” deference), they can still be
instructive. Ruhrgas, 145 F.3d at 225, n. 23. As detailed
in the Magistrate Judge’s opinion, the panel addressed in
both opinions these very issues regarding the “furtherance”
and causation instructions and rejected Petitioner’s
complaints each time because the requested instructions
were not substantially correct and were not consistent with
the law in the Fifth Circuit. [Docket No. 18] at 15-20;
Cisneros, 203 F.3d at 346-47; Cisneros, 194 F.3d at 638-39.
Both of those holdings are as accurate now as they were
when they were written by the Fifth Circuit panels in 1999
and 2000. The Marek/Cisneros en banc opinion did not alter
the reasoning or the law upon which both panel decisions
were based. Further, as noted in the Magistrate Judge’s
opinion, Cisneros failed to object to the lack of an
instruction on the nexus Page 15 requirement and instead
objected only to the refusal of the trial court to use her
proposed “furtherance” instruction. Cisneros has shown no
error and certainly has not shown the requisite cause and
prejudice which she must to prevail in this action. These
requisites have been adequately described in the Magistrate
Judge’s opinion, as well as in the two vacated Fifth
Circuit opinions. This Court, therefore, sees no reason to
reiterate what has already been detailed and, while not
bound to follow those decisions, sees no valid reason why
they are not accurate and why the same reasoning should not
be used here.
With respect to the issue of preservation of error and due
process on the causation issue, the Magistrate Judge has
analyzed this point in great detail and this court adopts
the reasoning of the Report and Recommendation. Federal
Rule of Civil Procedure 51 requires that a party objecting
to a jury instruction or the failure to give an instruction
state “distinctly the matter objected to and the grounds
for the objection.” FED. R. CIV. P. 51. “Where a party
argues on appeal that the district court erred in refusing
to give a proffered jury instruction, that party must `show
as a threshold matter that the proposed instruction
correctly stated the law.'” Russell v. Plano Bank & Trust,
130 F.3d 715, 719 (5th Cir. 1997) (quoting Federal Deposit
Ins. Corp. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994)).
In this case the causation instruction submitted by
Cisneros was properly denied as it was not a correct
statement of the law. When the court refused to include
Cisneros’ proposed instruction, Cisneros did not offer an
alternative definition or object to the fact that there was
no definition in the jury instructions. When the proposed
jury instruction misstates the law a district court is
“under no obligation to tinker with the flawed proposed
instruction until it [is] legally acceptable.” Rogers v.
Ingersoll-Rand Co., 144 F.3d 841, 845 (D.C. Cir. 1998). That
is, “[a] requested instruction is properly refused if it is
improper, and a trial court is not required to correct
Page 16 a defective request.” Bueno v. City of Donna, 714
F.2d 484, 490 (5th Cir. 1983). Furthermore, had the court
come up with its own definition of causation and included
it in the jury instructions it is unlikely it would have
helped Cisneros.[fn7] Therefore, Cisneros’ proposed
definition was properly refused as it was incorrect and the
court’s decision not to included an alternative definition
did not prejudice Cisneros.
III.
Denial Of Cisneros’s Constitutional Rights By
The Fifth Circuit And The United States Supreme Court
The most interesting and unusual point raised by the
Petitioner is her claim that her constitutional rights were
denied by the appellate courts. The genesis of her claim is
that the Circuit, in its en banc opinion, failed to address
each and every point of error in its opinion and that,
ultimately, the Supreme Court erred in denying her Petition
for Writ of Certiorari in which she argued the Court should
order the reinstatement of the second panel opinion.
Cisneros’ argument is as follows:
(A) The first Fifth Circuit opinion, which did address
all of her points of error, was vacated by the second;
(B) The second Fifth Circuit opinion, which also
addressed all of her points of error, was vacated by the
en banc opinion;
(C) The en banc opinion, which vacated the second panel
decision, addressed only the conflict between the second
Cisneros opinion and the opinion in Page 17 United States
v. Marek, 198 F.3d 352 (5th Cir. 2001);
(D) Despite the affirmance of the trial court by the
Circuit sitting en banc, it denied Cisneros’s “meaningful
appellate review” and worked a “manifest injustice” and in
effect denied Cisneros her right to “meaningful review”
and “due process.”
(E) The Supreme Court, by denying her petition for
certiorari, compounded the error by failing to correct the
alleged Fifth Circuit error.
It is not clear whether Petitioner is objecting to the
Magistrate’s Report and Recommendation on this issue or she
has chosen to accept his Report in this regard and merely
concentrate her complaints on his use of the “law of case”
doctrine. In an abundance of caution, this Court will
address this somewhat unusual complaint.
Factually, this Court would note that Cisneros has had
more appellate review, quantitatively speaking, than most
litigants. She has had three judges consider all of her
points of error and write one opinion. Those same three
jurists granted a rehearing, reconsidered those points, and
wrote a new opinion. Then the entire Fifth Circuit voted a
rehearing en banc and heard her case, including her motion
for rehearing. She then filed a petition for writ of
certiorari, which was denied by the Supreme Court, in which
she raised the subject matter of the panel opinions. Now,
in addition to those judges, she has had a United States
Magistrate Judge and a different United States District
Judge consider her objections. Thus, in terms of sheer
numbers, Cisneros has had almost the maximum number of
judges one can possibly have review her case.
The Circuit sitting en banc ruled that “we therefore
affirm both appellants’ [Marek and Cisneros] convictions
and sentences.” Marek, 238 F.3d at 323. To affirm those
convictions, the court had to have given due consideration
to any points raised. This Court is unaware of any
requirement that an en banc panel of the Fifth Circuit
write an opinion addressing each point raised Page 18
before the Panel or each point raised in a motion for
rehearing. The en banc court also stated “we hold that both
Cisneros’s and Marek’s murder for hire transactions
violated 18 U.S.C. § 1958. Cisneros did so by
causing her agent to make qualifying telephone calls
between the United States and Mexico.” Id.
This Court has not been provided with any authority
holding that each opinion of an en banc appellate court
must address each point of error or reinstate a vacated
opinion. This Court finds that the due process rights of
Cisneros have not been violated. She has had more than
twenty-four appellate judges (three of whom considered her
case on three separate occasions), two District Judges, and
one United States Magistrate Judge consider the merits of
her case. Both panel decisions considered all of her points
of error, and all appellate judges considered these points
when they addressed her motions for rehearing and petition
for writ of certiorari. Otherwise, they could not have
affirmed her conviction. There is no requirement for a court
to reduce each such consideration to writing nor is there
a requirement that the court reinstate a Circuit Panel
opinion, which was vacated by virtue of rehearing en banc
— especially when one considers Cisneros moved for
rehearing en banc. In effect, she is complaining because
the result of the rehearing en banc was not what she
wanted. Cisneros was not deprived of the opportunity to
have all her claims raised before the Supreme Court, merely
by the failure to write on them by the Fifth Circuit
sitting en banc. She was free to raise these issues in her
petition for certiorari and, if granted, could have had
each reviewed despite the Fifth Circuit’s failure to
address these in writing in the en banc opinion.
This holding is not merely an exercise in the obvious as
it directly applies to at least two Page 19 portions of
the Magistrate Judge’s report to which she objects.[fn8]
Cisneros complains, as discussed above, about the Court’s
failure to include her proposed causation issue. She admits
that she appealed this issue and obtained relief in neither
the panel decisions nor the en banc decision. She writes
that “the objection was preserved on this appellate point,
which was raised in full in the prior briefing to the Fifth
Circuit.” [Docket No. 21] at 17. The fact that the panel
decision, which addressed in writing and denied Cisneros
relief on this point, was vacated does not mean this point
has not been considered or ruled upon. This affirmance of
her conviction by the en banc court was a denial of this
point of error notwithstanding the fact that the Circuit
chose not to write on that issue.
Similarly, Cisneros’s objection as to her proposed
“furtherance” instructions were also briefed, heard and
rejected by the Court of Appeals. While this Court agrees
it is not bound by, and will not apply, the “law of the
case” doctrine, Petitioner’s conclusion that she has never
had a “full and fair opportunity” for review is patently
false. Her complaints have been considered by two panels,
the Fifth Circuit en banc, and the United States Supreme
Court. Each court denied her relief. Cisneros concludes:
[I]t is entirely probable that Cisneros’s jury convicted
her without any finding that either alleged act of foreign
commerce (car travel or phone car) facilitated (or was “in
furtherance of”) the “murder for hire scheme.”
To suggest this was not considered by the Court of Appeals
ignores both the vacated panel opinions and the en banc
opinion. As quoted above, the Court en banc wrote: Page 20
[Cisneros violated the murder for hire statute] by
causing her agent to make qualifying telephone calls . . .
thereby using a facility in foreign commerce to facilitate
a murder for hire.
These issues were obviously before the panel in both of its
decisions and before the court sitting en banc. Cisneros
admits the error was presented and was contained in her
briefing to the Fifth Circuit. [Docket No. 21] at 23. She
cannot now complain that her arguments were not accepted by
a majority of that court. Simply because arguments that
were put forth to the court were not accepted does not mean
that they were not considered — even if their
ultimate rejection was not detailed in an opinion.
Matters that have been rejected on appeal cannot be
re-attacked collaterally pursuant to 28 U.S.C. §
2255. Vernell v. United States, 559 F.2d 963, 964 (5th Cir.
1977); Del Genio v. United States, 352 F.2d 304 (5th Cir.
1965).
IV.
Conclusion
With the few exceptions noted above, the report and
recommendation of the Magistrate Judge is adopted. The
Respondent’s Motion to Dismiss [Docket No. 5] is GRANTED
and the Petitioner’s § 2255 motion is DENIED. The
Court finds no merit to her claim that her conviction was
marred by constitutional infirmities and/or ineffective
counsel.
[fn1] The first jury instruction sought by Cisneros, “that
the interstate/foreign commerce connection had to have been
`in furtherance’ of the murder for hire,” was rejected as
it articulated an improper standard under Fifth Circuit
precedent. Id. at 638. Cisneros’ second requested jury
instruction, which amounted to an instruction on the burden
of proof, was rejected because “the district court
repeatedly emphasized that the government carried the
burden.” Id. The third proposed instruction, which “sought
to limit the jury’s consideration of tape-recorded
conversations,” was not included because Cisneros failed to
make a proper objection at trial. Id. The fourth
instruction, which concerned the issue of causation, was
rejected because it was inconsistent with Fifth Circuit
precedent. Id. at 639. Finally, the fifth desired
instruction, which involved the statute of limitations, was
properly rejected because “[i]ts omission did not impair
Cisneros’ ability to present a defense because there was no
defense under the statute of limitations. Id.
[fn2] Marek, 238 F.3d at 313.
[fn3] Referring the reader to the factual recitation found
in the second panel decision at 203 F.3d 337-39.
[fn4] While this Court does not view either of the prior
Fifth Circuit panel opinions as triggering the application
of the “law of the case” doctrine, (see Section II.C), it
is instructive that the vacated panel opinions found at 203
F.3d 333, 344 (5th Cir. 2000) and 194 F.3d 626, 636 (5th
Cir. 1999) also reviewed the factual sufficiency of these
phone calls and the issue of the so-called collect calls
and found no error.
[fn5] Cisneros’ arguments that the Magistrate’s report and
recommendation is “unconstitutionally restrictive” and
applies the erroneous standards are unavailing. The
Magistrate Judge properly applied Strickland v. Washington,
466 U.S. 668 (1984), and correctly found that Cisneros did
not make the requisite showing to prevail on an ineffective
assistance of counsel claim. After evaluating the
Magistrate Judge’s Report and Recommendation and Cisneros’
objections thereto, this Court is satisfied that Cisneros
met neither the performance prong nor the prejudice prong
of Strickland in order to prove an ineffective assistance
of counsel claim.
[fn6] The Fifth Circuit has held in that the failure to
object to jury instructions in certain situations does not
constitute ineffective assistance and this Court does not
feel that the failure to object to the jury instructions in
this case rose to the level of ineffective assistance. See,
e.g., Thacker v. Dretke, 396 F.3d 607, 614 (5th Cir. 2003)
(explaining that in order to prevail on an ineffective
assistance of counsel claim an individual must show that
the attorney’s failure to object to the jury charged fell
below an objective standard of reasonableness thereby
causing prejudice as set forth in Strickland); Harris v.
Warden, Louisiana State Penitentiary, 152 F.3d 430, 440
(5th Cir. 1998) (holding that trial counsel’s deficient
performance did not meet Strickland’s prejudice
requirement).
[fn7] Petitioner now claims that her counsel’s failure to
push for an alternative definition was ineffective
assistance of counsel. This is not accurate. Indeed, one
can postulate many reasons for not objecting and insisting
on the inclusion of a definition of cause. One strategic
reason readily comes to mind. At the time Petitioner’s own
offered definition had been refused. That being the case,
counsel could have assumed, with near certainty, that any
definition the court would give would be less favorable
considering her view of the case than the one they
proposed. With no definition counsel would still have the
latitude to argue that no cause existed and would not be
harmed by a more restrictive definition. To second-guess
that decision — which may have been a well thought
out strategy — would be the height of
“Monday-morning quarter-backing,” a process the Supreme
Court wisely counseled against in Strickland. Strickland,
466 U.S. at 689; see also United States v. Molina-Uribe,
429 F.3d 514, 520 (5th Cir. 2005).
[fn8] It could be argued, however, that the refusal to
reinstate the opinion of the second panel could never be
harmful error because that opinion affirmed her conviction
just as the en banc decision did. Thus, if the relief she
requested had been granted either by the Fifth Circuit en
banc or the Supreme Court and the panel decision
reinstated, she would still be convicted. Her argument that
by their failure to reinstate the second panel decision the
Fifth Circuit compromised her rights was presented in her
Petition for Writ of Certiorari and denied by the United
States Supreme Court. This Court feels no compunction to
hold that the Supreme Court committed error in issuing its
denial. Page 1