IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50498
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD LUNA,
Defendant-Appellant.
- - - - - - - - - -
On Appeal from the United States District Court
for the Western District of Texas
(EP-99-CR-904-1-H)
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June 29, 2001
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Ronald Luna was convicted on four counts
of bribery in violation of 18 U.S.C.§ 201(b)(2) (Counts One through
Four) and two counts of submitting false and fraudulent claims with
a federal agency in violation of 18 U.S.C. § 287 (Counts Five and
Six). He challenges his bribery convictions on the ground that
Counts Two, Three, and Four of the indictment are multiplicitous
*
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this opinion should not be published and is not precedent except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. Rule 47.5.4.
because together they allege the same specific conduct encompassed
by the general allegations of Count One. He also claims that the
district court abused its discretion in permitting a government
witness to speculate about the meaning of a tape-recorded statement
made by Luna, and that the district court plainly erred in allowing
the prosecutor to make improper comments during closing argument.
Concluding that Luna affirmatively waived his right to challenge
the multiplicity of his convictions; and that his remaining two
contentions are without merit, we affirm.
I. Facts and Proceedings
Luna’s convictions stem from his position as a project
engineer for the Directorate of Public Works and Logistics (“DPWL”)
at the Fort Bliss United States Army Base. While serving in that
capacity, he (1) encouraged DPWL to purchase services from a
company called King’s Aire and (2) filed fraudulent claims on
King’s Aire’s behalf, in return for monetary payments from King’s
Aire to Luna. He was charged with the four counts of bribery and
two counts of filing false and fraudulent claims with an agency of
the United States for which he was convicted.
Count One of the indictment charged Luna with soliciting and
accepting bribes from King’s Aire. Counts Two, Three, and Four
each alleged particular incidents of solicitation and receipt of
bribes. Specifically, Count Two alleged that, in return for
submitting fraudulent expense reports to DPWL at the behest of
2
King’s Aire, Luna received $1000 cash on April 9, 1999; Count Three
alleged that Luna received $1,000 cash on April 15, 1999 for the
same kind of activity; and Count Four alleged that he received a
$500 check on April 29, 1999 for doing the same thing. Luna pleaded
not guilty and went to trial.
On two occasions the district court inquired sua sponte into
the apparent multiplicity of the bribery counts. The first
occasion occurred at a pretrial conference when the court stated
that this “might be a situation that calls for an election before
the case goes to the jury.” The second occurred after the close of
the evidence at trial when the district court again raised the
issue, asking the parties for their opinions whether an election
was required. The prosecutor answered that he did not believe an
election was necessary but was willing to make one if the court so
required. In his response, Luna’s counsel stated that he had no
objection to submitting all four bribery counts to the jury. Luna
was present during this entire colloquy and apparently stood mute.
The jury found Luna guilty on all six counts charged in the
indictment. After that, Luna filed a motion for a judgment of
acquittal and for a new trial on grounds that (1) the evidence
presented at trial was insufficient to support his convictions and
(2) the prosecutor made improper statements during closing
arguments. He did not complain to the district court about the
multiplicity question.
The court denied Luna’s motion and sentenced him to 27 months
3
of imprisonment and three years of supervised release for each
count of conviction, with all terms to run concurrently. The court
also imposed a $2,500 fine and a special assessment of $100 per
count of conviction. Luna timely appealed.
II. Analysis
A. Multiplicitous Convictions
Luna contends, for the first time on appeal, that his bribery
convictions are multiplicitous in that the specific offenses
alleged in Counts Two, Three, and Four of the indictment merely
allege the discrete occurrences covered by the general allegations
of Count One. This raises a legal issue, over which we typically
have plenary review.2 Luna acknowledges that we must consider his
claim under the plain error standard of review because he failed to
register an objection in the district court. We decline to review
this issue at all, however, as we conclude that Luna expressly
waived it at trial when he acceded to and acquiesced in his
counsel’s explicit demurral to the court’s invitation to require
the government to make an election as to which count or counts
should be submitted to the jury.
“Waiver is different from forfeiture. Whereas forfeiture is
the failure to make the timely assertion of a right, waiver is the
2
United States v. Lankford, 196 F.3d 563, 577 (5th Cir.
1999).
4
‘intentional relinquishment or abandonment of a known right.’”3
“When a defendant has waived a right, the district court cannot be
said to have erred by failing to override the intentions of the
defendant’s counsel by asserting the right sua sponte.”4 Here, the
district court twice raised the issue of the multiplicity of the
charges sua sponte, first in a pretrial conference and again just
before the charges were submitted to the jury for consideration.
On this latter occasion, the district court essentially offered to
require the government to make an election as to which among the
potentially redundant charges should be submitted to the jury, and,
in Luna’s presence, Luna’s counsel expressly declined that offer.
Admittedly, it was not Luna himself who spoke the words;
rather it was his attorney whose statement in open court
unequivocally rejected the district court’s offer. We typically
consider the statements of counsel to be expressions of his
client’s wishes, translated into the appropriate legal language.
Nevertheless, we recognize that some slight hesitation is in order
when, as here, the decision of counsel attributed to the defendant
waives one of his substantive rights in a criminal proceeding.
There is a paucity of cases discussing the issue of
multiplicity of a defendant’s convictions, and we are aware of none
3
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
4
United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999)
(citing Olano, 507 U.S. at 733).
5
that do so in the context of waiver.5 Therefore, we must look to
analogous cases. A general analogy can be made to most criminal
trials, wherein defense counsel is regularly compelled to make any
number of tactical decisions, such as whether to register an
objection to an improper comment by the prosecutor or a witness,
whether to put the defendant on the stand, and the like. In such
instances, there is no real question whether defense counsel’s
failure to object or refusal to put the defendant on the stand is
deemed to be the will of the defendant.
Perhaps a closer analogy is reflected in our decision in
United States v. Reveles6 which holds that a defendant, through his
counsel’s repeated and express actions, waived —— as opposed to
forfeited —— his Sixth Amendment right not to have the court admit
into evidence an incriminating statement by a non-testifying co-
defendant. Our Reveles opinion relied in turn on our holding in
United States v. Stephens,7 that “a defendant’s attorney can waive
the Sixth Amendment’s confrontation right ‘so long as the defendant
does not dissent from his attorney’s decision, and so long as it
can be said that the attorney’s decision was a legitimate trial
5
But cf. United States v. Soape, 169 F.3d 257 (5th Cir.
1997), which uses the terms “waiver” and “waive” when the issue
actually before the court was whether the defendant had forfeited
his right to challenge the alleged multiplicity of his sentences by
failing to object in the district court.
6
190 F.3d 678, 683 (5th Cir. 1999).
7
609 F.2d 230 (5th Cir. 1980)
6
tactic or part of a prudent trial strategy.’”8
There is no evidence in the instant record that Luna in any
way questioned or dissented from his counsel’s decision to decline
the district court’s offer —— a decision that can be considered to
embody a legitimate trial tactic. Contextually, we cannot ignore
the fact that Luna is a mature, educated, experienced government
executive. He easily should have been able to comprehend the
straightforward, open-court discussion of the alleged redundancies
in the bribery counts of his indictment and consult with his
attorney if he had any concern or disagreement whatsoever.
In rejecting Luna’s challenge to the multiplicity of his
convictions, we do so sua sponte, as the government —— the appellee
in this instance —— did not argue explicit waiver in its appellate
brief or at oral argument. Rule 28 of the Federal Rules of
Appellate Procedure requires that the briefs of the parties contain
their “contentions and the reasons for them, with citations to the
authorities and parts of the record on which [the party] relies.”9
Although our general practice is to construe this rule strictly and
thus deem waived any claims not briefed,10 we nevertheless enjoy the
discretion to consider such matters when we perceive the need to do
8
Reveles, 190 F.3d at 683 n. 6 (quoting United States v.
Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980)).
9
Fed. R. App. Proc. 28 (2001).
10
See, e.g., United States v. Fagan, 821 F.2d 1002, 1015 n.
9 (5th Cir. 1987).
7
so. As we recently stated in United States v. Miranda,11 “the
issues-not-briefed-are-waived rule is a prudential construct that
requires the exercise of discretion. We may consider such an
issue, particularly where substantial public interests are
involved.”12
In addition, we construe this rule more leniently when the
party who fails to brief an issue is the appellee. We do this in
recognition of the differences in the situations of the appellant
and the appellee. As a general rule, the appellee is entitled to
rely on the favorable ruling of the court from which the appeal has
been taken; appellees “do not select the issues to be appealed[,]
. . . [and] are at a procedural disadvantage in appeals because
they can neither file reply briefs nor choose when to appeal.”13
Moreover, two of the major policy underpinnings of the rule that
the-issues-not-briefed-are-waived, i.e., “‘avoiding piecemeal
litigation and conserv[ing] judicial resources . . . are less
implicated when the party against whom waiver is asserted is the
appellee.’”14 This is not to imply that we here deviate from the
rule expressed in Miranda that we may consider issues not briefed
11
248 F.3d 434 (5th Cir. 2001).
12
Miranda, 248 F.3d at 443-44 (citations omitted).
13
Laitram Corp. v. NEC Corp., 115 F.3d 947, 954 (Fed. Cir.
1997).
14
Shell Offshore, Inc. v. Director, Office of Worker’s Comp.
Programs, 122 F.3d 312, 317 (5th Cir. 1997) (quoting Laitram, 115
F.3d at 954).
8
when “substantial public interests are involved.”15 We are merely
saying that the “substantial public interest” hurdle is lower when
the party who fails to brief the issue is the appellee.
This is clearly an occasion when the integrity of the judicial
system requires us to address the issue whether Luna waived —— and
did not merely forfeit —— his right to object to the multiplicity
of his convictions. To allow a defendant, perhaps for tactical
purposes, expressly to reject the court-initiated opportunity to
cure a potential error, then later —— if he loses before the jury
—— to urge that same “error” on appeal, could undermine our
adversarial system of justice and reward the defendant with a
“heads I win, tails you lose” second bite. Were we to ignore
Luna’s implicit ratification of his counsel’s express waiver of the
district court’s offer to remedy exactly the “error” he now urges
on appeal and proceed to examine it for plain error, we would be
doing just that.
B. Improper Testimony of a Government Witness
Luna also claims that he is entitled to a new trial because
the district court improperly permitted a government witness to
speculate about the meaning of Luna’s tape-recorded statement to
that witness. We review the district court’s evidentiary rulings
for abuse of discretion.16 Federal Rule of Evidence 701 mandates
15
Miranda, 248 F.3d at 444.
16
United States v. Phillips, 219 F.3d 404, 409 (5th Cir.2000).
9
that the testimony of lay witnesses be “limited to those opinions
or inferences which are (a) rationally based on the perception of
the witness, [and] (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” We
have long recognized that “a trial court has some latitude in
permitting a witness on direct examination to testify as to his
conclusions, based on common knowledge or experience.”17
Luna’s contentions to the contrary notwithstanding, the
district court acted well within the bounds of its discretion in
allowing the testimony of King’s Aire’s controller as to the
meaning of tape-recorded statements made by Luna. The testimony at
issue was based on the first-hand knowledge of the witness, who was
present during the recorded conversation Luna was discussing, and
helped to illuminate the meaning of Luna’s statements. The court
did not abuse its discretion in this evidentiary ruling.
C. Prosecutorial Misconduct
Luna next contends that the prosecutor mischaracterized
material evidence during his closing argument. In evaluating such
a challenge, we ask whether the prosecutor’s remarks (1) were
improper and (2), when taken as a whole and in the context of the
entire trial, prejudiced Luna’s substantial rights.18 Because Luna
did not contemporaneously object to the prosecutor’s remarks, we
17
United States v. Mandujano, 499 F.2d 370, 379 (5th Cir.
1974).
18
United States v. Munoz, 150 F.3d 401, 415 (5th Cir. 1998).
10
review this contention for plain error.19
After carefully reviewing the remarks in question as well as
the record as whole, we are satisfied that the contested comments
merely discussed evidence that was already present in the record
and did so without improperly coloring that evidence. In allowing
those comments, the district court did not commit plain error.
III. Conclusion
For the foregoing reasons, Luna’s convictions and sentences
are
AFFIRMED.
19
United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994)
(en banc).
11