IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50659
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ACENCION GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(96-CR-127-2)
July 21, 1998
Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.
PER CURIAM:*
In this direct criminal appeal, Defendant-Appellant Acencion
Garcia asks us to reverse his conviction by a jury of conspiracy to
possess with intent to distribute marijuana, conspiracy to import
marijuana, possession with intent to distribute marijuana, and
importation of marijuana, in violation of 21 U.S.C. §§ 841, 846,
952 and 963. Garcia assigns as reversible error (1) insufficiency
of evidence to prove his knowing possession of marijuana in the
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
back of a truck that he drove, and (2) three rulings by the
district court: (a) excluding evidence or explanation to the jury
of the absence or flight of Garcia’s co-defendants, (b) denial of
Garcia’s requests for severance; and (c) refusal to exclude
impeachment testimony by an agent of the United States Custom
Service (the Customs Service) about a post-indictment discussion
with Garcia while he was incarcerated pending trial. Additionally,
Garcia complains that, even if none of those errors, standing
alone, are held to justify reversal, their cumulative effect does.
Concluding that, separately or in the aggregate, the errors alleged
by Garcia fail to mandate reversal, we affirm.
We have carefully reviewed the record of Garcia’s trial,
considered the facts revealed thereby and reiterated in the
appellate briefs of counsel, analyzed the legal arguments of
counsel as set forth in their respective briefs and at oral
argument to this panel, and independently researched the law
applicable to the issues raised by Garcia. We speculate that it
will come as no surprise to defense counsel who vigorously argued
Garcia’s case on appeal that we now conclude that (1) the evidence
and inferences therefrom when viewed in the light most favorable to
the jury verdict are more than sufficient to support a finding that
Garcia possessed the requisite knowledge of the presence of
marijuana in the truck he drove, (2) no plain error resulted from
the exclusion of evidence or explanation of Garcia’s co-defendants’
absences at trial, and (3) the district court did not abuse its
discretion in denying severance of trial as requested by Garcia.
2
And, as that leaves only the evidentiary ruling on the
excludability of testimony by the Customs Service agent regarding
his jailhouse discussions with Garcia, no error remains with which
that ruling can be combined to constitute cumulative error. Under
these circumstances, then, we need not and therefore do not write
further except in connection with the evidentiary ruling on the
availability to the government of the Customs Service agent’s
testimony to impeach Garcia, if he were to take the stand and if
his testimony were to prove inconsistent with the statements he
made to the agent.
Garcia filed a motion to suppress the statements he made to
Special Agent Alfredo Delgado of the Customs Service while Garcia
was incarcerated post-indictment. He grounded his suppression
motion in the so-called “plea statement rules,” i.e., Fed. R. Evid.
410(4) and Fed. R. Crim. P. 11(e)(6), insisting that the specter of
the government’s using Delgado’s testimony for impeachment purposes
chilled Garcia’s right and ability fully to present a complete
defense within the meaning of the Due Process Clause. In support
of suppression, Garcia’s trial attorney argued that (1) counsel had
been impermissibly deprived of the information regarding Garcia’s
discussion with Delgado, (2) given that this discussion was held
after Garcia had invoked his right to counsel and in fact was being
represented, he could not waive his rights under the plea statement
rules without, as a minimum, discussing the matter with his
attorney, and (3) Garcia’s original counsel never granted
permission for Delgado to meet with Garcia. The government’s
3
opposite position was that Garcia’s statement could be used to
impeach him if he took the stand and testified inconsistently with
his earlier statements because they had not been made in the course
of plea bargaining and, in addition, he had knowingly waived
presence of counsel and freely and voluntarily initiated and
participated in the debriefing.
Following the suppression hearing, the district court ruled
against Garcia, specifying that Delgado would be permitted to
testify but only as an impeachment witness and then only if
Garcia’s trial testimony should conflict with his June 1996
statements to Delgado. For whatever reasons, Garcia did not
testify.
On appeal, the government supports the district court’s
ruling, contending that the statements at issue were not made in
the course of plea negotiations, so that the plea statement rules
are inapplicable; and, alternatively, that even if we conclude that
plea negotiations had commenced, Garcia effectively waived his
protections under those rules.
Evidentiary rulings in a criminal case are reviewed at a
“heightened” abuse of discretion level.1 Moreover, even if, under
such a stringent standard of review, we were to conclude that the
trial court’s ruling was erroneous, the harmless-error analysis is
still applicable.2
1
United States v. Carrillo, 20 F.3d 617, 619 (5th Cir.),
cert. denied, 513 U.S. 901 (1994).
2
See Fed. R. Crim. P. 11(h); Fed. R. Evid. 103(a).
4
At the suppression hearing, which was conducted during a
recess of the trial, Delgado testified that United States
Magistrate Judge Alia Moses Ludlum —— then an Assistant U. S.
Attorney (AUSA) —— had authorized him to speak with the
incarcerated Garcia, out of the presence of counsel. Delgado
further testified that Garcia had initiated the process when he
spoke to a detention center officer concerning a desire to converse
with an agent of the Drug Enforcement Administration (DEA) about
drug smuggling. This prompted the detention center to contact
Delgado. When he learned that Garcia had already been indicted and
was represented by counsel, however, Delgado called then-AUSA
Ludlum and told her that Garcia wanted to provide information about
a load of marijuana that was expected to be moved the next day, and
that, although Delgado was represented by counsel, he did not want
his attorney present. Given the imminence of the drug transaction
about which Garcia wished to talk, Ludlum told Delgado to get the
information from Garcia but not to discuss Garcia’s criminal
charges with him. (Delgado testified unequivocally that he
complied with this directive.)
According to Delgado, he then met with Garcia, explaining at
the outset that Garcia had a right to have his attorney present.
Delgado further informed Garcia that his attorney was being
contacted by Ludlum, who would explain the situation to counsel.
Garcia responded that he was not pleased with his attorney and that
he wanted to help himself. Garcia then disclosed that he was
involved in a marijuana-trafficking organization operating between
5
Eagle Pass and Dallas that moved 1000-pound loads twice a week; and
he told Delgado the location of stash houses in both cities.
According to Delgado, neither he nor Garcia discussed the charges
for which Garcia was being detained. Delgado volunteered to
Garcia that the information he had supplied would be considered by
the government as constituting cooperation, a fact that we note
could prove beneficial to Garcia if he were to be sentenced
following a trial and conviction, regardless of whether he ever
entered into plea discussions or in fact pleaded guilty.
AUSA Bill Baumann testified at the suppression hearing,
informing the court that Ludlum told him that she had obtained the
approval of Garcia’s counsel for agents to speak with Garcia
without counsel being present. Additionally, Ludlum had written to
Garcia’s counsel, explaining the “ground rules” for Garcia’s
debriefing by Delgado and specifying that, although Garcia’s
statements would not be used in the government’s case-in-chief,
they could be used to impeach Garcia if he should testify
inconsistently with his statements to Delgado.3
Garcia met with Delgado in June 1996. In September, Garcia’s
attorney moved to suppress any statement, admission, or confession
made by Garcia after his arrest, but did not mention Delgado’s June
debriefing of Garcia. Then, in January 1997, Garcia’s lawyer was
granted permission to withdraw and a successor attorney was
appointed. Garcia’s new lawyer did not learn of the June 1996
3
This letter was prepared with blanks for signatures by
Garcia and his counsel, but the record copy reflects no signatures
of either.
6
debriefing by Delgado until three days before Garcia’s trial.
As the district court failed to articulate findings of fact
regarding its suppression ruling, we “independently review the
record to determine whether any reasonable view of the evidence
supports admissibility.”4 The plea statement provisions of Fed. R.
Evid. 410 and Fed. R. Crim. P. 11(e)(6) “are substantively
identical.”5 Although the rules indicate that, for the plea
statement protections to apply, the statements at issue must be
made in the course of negotiations to “an attorney for the
government,” principles of agency law may create circumstances in
which statements made to law enforcement agents in the course of
plea negotiations are protected.6 As noted, Garcia’s debriefing
statements were made to Delgado who testified that he obtained
advance authorization to speak with Garcia from Ludlum, the then-
AUSA assigned to the case at the time.
Garcia avers that there is no evidence that he waived his plea
statement rights under the rules. He insists therefore that his
statements to Delgado should have been ruled inadmissible, even as
impeachment evidence, had he chosen to testify on his own behalf.7
4
United States v. Yeagin, 927 F.2d 798, 800 (5th Cir. 1991).
5
United State v. Mezzanatto, 513 U.S. 196, 200 (1995).
6
2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence § 410.09[3](2d ed. 1998); see United States v.
Brooks, 670 F.2d 625, 628 (5th Cir. 1982).
7
At the suppression hearing, Garcia failed to proffer what
his testimony would be if he elected to testify at trial. He now
asserts that his failure to do so does not preclude our review of
the issue. The government makes no reference to Garcia’s failure
to testify at trial or of the absence of proffered testimony at the
7
The Ludlum letter, as noted, expressed the condition that the
government could use Garcia’s statements as impeachment evidence if
he should testify inconsistently with his earlier statements.
Again, the copy of the letter filed in the record does not contain
the signatures of Garcia or his counsel; however, AUSA Baumann
stated at the suppression hearing that Ludlum told him that she had
cleared with Garcia’s counsel in Dallas that agents could speak
with Garcia without his lawyer being present. Delgado testified
that he informed Garcia of the statement by Ludlum that she would
contact Garcia’s lawyer to explain the situation.
“[A]bsent some affirmative indication that the agreement was
entered into unknowingly or involuntarily, an agreement to waive
the exclusionary provisions of the plea-statement Rules is valid
and enforceable.”8 When signed by counsel and defendant, a letter
such as the one sent by Ludlum to Garcia’s defense counsel suffices
to waive the defendant’s rights to the protections offered by the
plea statement rules.9 We have not been called on to apply
Mazzanatto to a situation in which a copy of the authorization
letter filed in evidence did not reflect whether it had been signed
suppression hearing. From the opening statement in defense
counsel’s appellate brief, however, it appears that Garcia would
have testified that he was an unwitting friend helping someone to
move furniture —— testimony that would conflict with the statements
he made to Delgado.
8
Mazzanatto, 513 U.S. at 210.
9
See id.; United States v. Maldonado, 38 F.3d 936, 942-43
(7th Cir. 1994), cert. denied, 516 U.S. 876 (1995).
8
by the defendant or counsel or both.10 Signing such a letter is not
the exclusive method by which a defendant can waive the protections
of the plea statement rules; however, without some kind of valid
waiver, “[s]tatements made by a defendant in connection with a plea
or an offer to plead . . . may not be used substantively or for
impeachment in any civil or criminal proceeding against the person
who made the plea or offer,” except for statements used in a
subsequent prosecution for perjury.11
“[N]ot every discussion between an accused and agents for the
government is a plea negotiation.”12 Statements made by a defendant
other than in the course of plea negotiations, however, do not come
under the ambit of the plea statement rules.
To determine whether a discussion should be characterized
as a plea negotiation and as inadmissible, the trial
court should carefully consider the totality of the
circumstances. Thus, each case must turn on its own
facts.
. . . .
The trial court must apply a two-tiered analysis and
determine, first, whether the accused exhibited an actual
subjective expectation to negotiate a plea at the time of
the discussion, and second, whether the accused’s
expectation was reasonable given the totality of the
objective circumstances.13
Garcia did not testify at the suppression hearing, and Delgado
10
See United States v. Tamez-Gonzalez, No. 95-50460, slip op.
at 4-5 (5th Cir. Nov. 26, 1996) (unpublished).
11
2 Weinstein, supra note 6, § 410.11 (footnote omitted).
12
United States v. Robertson, 582 F.2d 1356, 1365 (5th Cir.
1978) (en banc).
13
Id. at 1366.
9
testified that he was unfamiliar with the Ludlum letter. That
letter refers to Rule 11, but it also refers to § 1B1.8 of the
Sentencing Guidelines, the provision covering the use of
information provided by a defendant who agrees to cooperate.
Delgado was informed by Garcia that he was unhappy with his
attorney and wanted to help himself. Delgado testified at the
suppression hearing that he strictly followed Ludlum’s
instructions? not to discuss Garcia’s pending federal charges with
him. True, the debriefing between Delgado and Garcia took place
after Garcia was indicted, after he exercised his constitutional
right to counsel, and after he obtained counsel. And it is also
true that post-indictment discussions carry “a strong inference
that admissions were made in the course of plea negotiations.”14
Nevertheless, having considered both the contents of and
omissions from the record of the suppression hearing and all other
relevant facts and circumstances, as well as the inferences to be
drawn therefrom, we conclude that a reasonable view of the district
court’s suppression ruling is that it includes the implicit finding
by the district court that the meeting between Garcia and Delgado
did not occur in a plea negotiation setting. Neither Garcia nor
the government cites to Robertson and neither argues whether or not
Garcia held the subjective belief that plea negotiations were
proceeding or, if he did, whether such a belief was reasonable
under the circumstances. There is no record evidence contradicting
the suppression testimony —— some of which is admittedly hearsay
14
2 Weinstein, supra note 6, § 410.09[5].
10
but was not objected to —— to the effect that the AUSA in charge of
Garcia’s case at the time obtained his counsel’s oral consent for
Garcia to meet with Delgado out of the presence of counsel.
Neither is there evidence contradicting the testimony that Garcia
was dissatisfied with counsel, desired to proceed with self-help,
and never discussed his own case with Delgado; nor is there
anything in the suppression hearing record to contradict the
testimony that Garcia initiated the whole process without ever
adverting to a plea bargain, either personally or through his
counsel.
The suppression record also fails to reflect that the
Robertson two-tiered analysis was applied by the district court.
Moreover, we would not normally expect to hear that a defense
attorney had consented to his indicted and incarcerated client’s
meeting with a government agent outside the presence of counsel,
even when the government has promised that the charges pending
against the defendant would not be discussed.
We nevertheless conclude that here the totality of the
circumstances weigh more heavily in favor of a conclusion that,
irrespective of any silent hopes that Garcia may have harbored for
the ultimate help he might achieve for himself, the dialogue he
initiated and participated in with Delgado was at most preparatory
to any plea negotiations that he might have planned to initiate in
the future. As such, the plea statement rules were not applicable
and the district court did not abuse its discretion in refusing to
prohibit the government’s use of testimony by Delgado for the
11
limited purpose of impeachment when and if Garcia should take the
stand and give testimony conflicting with the statements he had
made to Delgado.
AFFIRMED.
12