United States v. Luna

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)
- - - - - - - - - -
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this opinion should not be published and is not precedent except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

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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).

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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).

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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).

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