United States Court of Appeals
Fifth Circuit
REVISED AUGUST 2, 2004
F I L E D
July 19, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-40917
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ENRIQUE INSAULGARAT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Luis Enrique Insaulgarat appeals his
conviction and sentence for possession of marihuana with intent to
distribute. We affirm his conviction, but vacate his sentence and
remand for resentencing.
Facts and Proceedings Below
On December 13, 2001, after a jury trial, the appellant Luis
Enrique Insaulgarat (Insaulgarat) was found guilty of one count of
possession with intent to distribute over 100 kilograms of
marihuana. The offense was alleged to have been committed on or
about August 21, 2001. On February 22, 2002, Insaulgarat was
sentenced to 262 months’ imprisonment, a five year term of
supervised release, and a mandatory special assessment of $100.
The trial evidence reflected the following. Insaulgarat
worked for LD Express, a Miami-based driver services business owned
by Lorenzo D’Erbiti (D’Erbiti) that provides drivers for
transporting various kinds of goods.1 In August of 2001,
Insaulgarat drove an empty trailer from Miami to Atlanta, where he
picked up a load and transported it to Michigan. He then picked up
another shipment in Michigan that was to be transported to Techno
Trim, in care of Big Lake Transport in Laredo, Texas. According to
personnel at Big Lake and the log book that Insaulgarat kept, the
Techno Trim shipment arrived in Laredo on August 18, 2001.
Insaulgarat then received instructions from D’Erbiti on the morning
of August 20, 2001, that he was to transport a load of air
conditioning equipment from Laser Forwarding, in Laredo, to Lennox
Global Air Conditioning of Miami. This equipment was scheduled for
delivery in Miami by 9:00 a.m. on August 22, 2001.
On the morning of August 20th, Insaulgarat took his now empty
1
Insaulgarat is a Cuban citizen, legally in the United
States as a political refugee.
2
tractor trailer to Laser Forwarding to be loaded.2 The loading of
the trailer lasted until approximately 7:00 p.m., at which time the
Laser Forwarding employee who had been loading it took a picture of
its contents and then put a metal seal on its rear. The seal
number was recorded on the bill of lading, which Insaulgarat
signed. Although Insaulgarat departed the Laser Forwarding
warehouse at approximately 7:10 p.m. on August 20, 2001, he did not
arrive at the Border Patrol checkpoint, located just north of
Laredo, until nearly 24 hours later.
Insaulgarat arrived at the Border Patrol checkpoint outside
Laredo at approximately 6:20 p.m. on August 21st. A canine alerted
to the rear of the trailer, so Insaulgarat proceeded to secondary
inspection. The Border Patrol agent instructed Insaulgarat to open
the trailer, which the agent noticed did not have a seal on it.
Upon entering the trailer, the agent discovered 60 bundles of
marihuana, weighing approximately 981 pounds. The agent seized the
marihuana, the bill of lading, a cellular telephone, and a log book
from the vehicle, and turned these items over to the DEA. DEA
agent Mike Rubalcaba (Rubalcaba) then interviewed Insaulgarat.3
2
Initially, two trailers were requested to haul the air
conditioning equipment to Lennox of Miami. However, after
Insaulgarat arrived it was discovered that the merchandise would
fit into one trailer. When the second trailer that had been
ordered arrived at Laser Forwarding, about an hour after
Insaulgarat, it was advised that it would not be needed.
3
During this interview, Insaulgarat’s cell phone rang
repeatedly. When one of the agents answered it, a male voice on
the other end asked who was speaking and then hung up.
3
At trial, Insaulgarat took the stand in his own defense. He
testified that he did not actually arrive in Laredo on August 18,
2001, as his log book said, but rather on August 20, 2001, at 5:50
a.m., and that he was therefore late with the delivery of the cargo
from Michigan because his tractor’s engine kept overheating during
the trip. He claimed that upon arriving in Laredo, he went
directly to Big Lake, where his cargo was to be unloaded, and
waited for the company to open at 7:00 a.m. Insaulgarat asked the
person receiving the merchandise at Big Lake to write down that he
had in fact arrived on August 18, so as to avoid the $100 fee that
results from showing up late. In exchange for this favor,
Insaulgarat claims he sold the Big Lake employee two locks at a
discounted price.4
At 9:00 a.m. the morning of August 20, Insaulgarat claims that
he received instructions to carry a load from Laredo to Miami.
After arriving at Laser Forwarding to receive the cargo at 9:30
a.m., he slept in his cab until about 2:00 p.m. He then woke up,
unhooked the tractor from the trailer, and drove the tractor to a
local truck stop where he played video games, returning at
4
Insaulgarat testified that he had to arrange his log book
to meet his deadlines and conform with trucking regulations about
driving time and resting periods. Therefore, he adjusted the log
book to show that he arrived in Laredo on August 18, the deadline
for the Michigan delivery, rather than August 20, when he
actually arrived.
In the government’s rebuttal case, the Big Lake employee
testified that the arrival date was in fact August 18, and he
denied that he had been asked to put down August 18 instead of
August 20.
4
approximately 5:00 or 6:00 p.m. After the trailer was loaded at
7:00 p.m., the seal was placed on the door. Insaulgarat testified
that it was possible to enter the trailer without breaking the
seal.
Insaulgarat testified that he left Laser Forwarding around
7:00 p.m, went to a truck stop in Santa Maria where he showered and
ate, and then took a taxi to Nuevo Laredo, Mexico. There, he
claims, he bought earrings for his daughter, saw a movie, and
walked around.5 Insaulgarat returned to his tractor-trailer at
3:00 or 4:00 a.m. the following morning. He claims that he could
not leave until 7:00 p.m. the next day because he wanted the
tractor to cool down and he needed to rest.6 He stayed in his cab
and rested until 4:00 p.m., at which time he claims that he took
the trailer to be washed and weighed. He then proceeded to the
checkpoint. Insaulgarat testified that he noticed that the seal
was still on the trailer when he returned from Nuevo Laredo early
in the morning on August 21, and that he did not recheck the seal
before proceeding to the checkpoint because he did not leave the
5
This contradicted what Rubalcaba said that Insaulgarat told
him during his post-arrest interview. There, he claims,
Insaulgarat said that while in Nuevo Laredo he went to Boys Town,
an adult entertainment location, and did not return until 3:00 pm
the following afternoon.
6
In his brief, Insaulgarat also notes that he did not drive
on the night of August 20, 2001, after loading up at Laser
Forwarding, because he had traveled 3000 miles in a period of
seven days, and had to rest for a period of twenty-four hours.
5
tractor-trailer alone after he had last checked it.
Insaulgarat’s cell phone records indicated that he made and
received a large number of calls to and from telephone numbers with
Laredo area codes while he was en route to Laredo and while he was
there. Furthermore, Insaulgarat stated that he had picked up a
fellow trucker, Roberto, whose truck had broken down outside
Atlanta, and who wanted to go to Laredo. Although Insaulgarat did
not know at the time that he would be going to Laredo, Roberto
accompanied him to Michigan, and then, serendipitously, to Laredo.
Insaulgarat claims that he let Roberto use his cell phone to call
his wife, daughter, and his company. Records from the phone
company showed that a Laredo cell phone number registered to
Rosalinda Gutierrez (Gutierrez) called Insaulgarat’s cell phone
multiple times, including around the time that he was at the
checkpoint. Agents learned that Gutierrez had given the cell phone
to Manuel Olvera (Olvera), but when they went to speak with Olvera,
they discovered that he had moved out the day of Insaulgarat’s
arrest.
Other relevant facts will be noted in the discussion of the
issues to which they pertain.
Discussion
I. Improper prosecutorial comments
Insaulgarat argues that the prosecutor made improper remarks
and asked improper questions that denied him a fair trial. He
first claims that prosecutorial misconduct occurred when the
6
Assistant U.S. Attorney (AUSA) elicited testimony from Agent
Rubalcaba that Gutierrez came to court on the first day of trial
pursuant to a trial subpoena, but had an attorney with her and
declined to make a statement. Insaulgarat next claims error
because of the AUSA’s comment to him during his cross examination
that he could be better understood if he told the truth.
A. Standard of Review
In reviewing a claim of prosecutorial misconduct, this Court
applies a two-step analysis. United States v. Lankford, 196 F.3d
563, 574 (5th Cir. 1999). We must first decide whether or not the
prosecutor “made an improper remark.” United States v. Munoz, 150
F.3d 401, 414 (5th Cir. 1998). In determining whether a
prosecutor’s comment was improper, it is necessary to look at the
comment in context. United States v. Washington, 44 F.3d 1271,
1278 (5th Cir. 1995). If an improper remark was made, we must then
determine whether the remark “prejudiced the defendant’s
substantive rights.” Munoz, 150 F.3d at 415. The prejudice
determination involves “(1) the magnitude of the statement’s
prejudice, (2) the effect of any cautionary instructions given, and
(3) the strength of the evidence of the defendant’s guilt.” United
States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995). “The
determinative question is whether the prosecutor’s remarks cast
serious doubt on the correctness of the jury’s verdict.” United
States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989).
7
B. Comments
1. Elicitation of Rubalcaba’s testimony about Rosalinda
Gutierrez
At trial, DEA Agent Rubalcaba testified on redirect
examination by the AUSA that Gutierrez was subpoenaed for
Insaulgarat’s trial, and that she arrived on the first day of
trial. However, Rubalcaba could not ask Gutierrez anything at that
time because “she refused to talk” and had a lawyer with her.7
Insaulgarat claims that the government impermissibly created an
inference that Gutierrez was guilty by introducing evidence that
7
During the government’s redirect examination of Rubalcaba,
the following exchange took place:
[Prosecutor]: Well, first of all, did you make any attempts
to go locate Rosalinda Gutierrez?
[Witness]: Yes.
[Prosecutor]: And were you able to interview her?
[Witness]: Yes.
[Prosecutor]: And did you serve or try to serve or serve a
subpoena on her?
[Witness]: Yes. . . . She showed up here yesterday.
[Prosecutor]: Okay. And did you ask Rosalinda
Gutierrez anything else after she showed up?
[Defense]: Objection, Your Honor. That might be
hearsay.
[Court]: No. That’s as far as did you ask her anything
else? Yes or no.
[Witness]: After she showed up here?
[Prosecutor]: Yes.
[Witness]: No.
[Prosecutor]: Why not?
[Witness]: She refused to talk.
[Prosecutor]: Why not? Was there anybody with her?
[Witness]: A lawyer.
[Defense]: Your Honor, objection. Your Honor, we make
a motion for a mistrial.
[Prosecutor]: They’ve been asking questions as far as –
[Court]: No, that’s overruled.
8
she refused to speak to Rubalcaba, and in turn, tainted
Insaulgarat’s credibility by making him appear guilty by
association with her. Insaulgarat argues that this Court has made
it clear that it is improper to elicit evidence that a defendant
invoked his right to counsel and remained silent. He cites cases
where this Court has criticized introduction of “guilt by
association” evidence, has not allowed introduction of evidence of
a co-conspirator’s guilty plea, and has not allowed a prosecutor to
call a witness to testify knowing that the witness would invoke the
right not to testify. See, e.g., United States v. Taylor, 210 F.3d
311, 316-18 (5th Cir. 2000); United States v. Leach, 918 F.2d 464,
467 (5th Cir. 1990); United States v. Brown, 12 F.3d 52 (5th Cir.
1994).
In Brown, this Court held that a prosecutor cannot call a
witness, knowing that the witness will invoke the right not to
testify, when it is done to create an improper inference. The
prosecution in Brown called the defendant’s son (and her husband)
to testify, knowing that they would invoke their rights not to
testify. We held that “there [was] a reasonable probability that
the jury inferred guilty knowledge on the part of both the
defendant and the witness from [the son’s] refusal to testify.”
Id. at 54. We continued, “[u]nder certain circumstances the forced
invocation of a testimonial privilege in the presence of the jury
will warrant reversal. . . . [such as] when the government makes a
9
‘conscious and flagrant effort to build a case based on the
unfavorable inferences which inure from a claim of the privilege’
. . . . [or] when those inferences add critical weight to the
government’s case in a form that is not subject to cross-
examination.” Id. (citing United States v. Watson, 591 F.2d 1058,
1062 (5th Cir. 1979)8). In Brown, because the son and husband
invoked the privilege and did not testify, the defense counsel did
not have an opportunity to cross-examine them in order to dispel
the adverse inferences that may have arisen from their silence.
Similarly here, the Rubalcaba exchange took place on redirect, and
because Gutierrez did not take the stand, there was no chance for
the defense to question her.
While there are some underlying similarities, Insaulgarat’s
claim differs from those presented in Brown and Watson, because
Gutierrez herself was never called to testify and therefore did not
invoke her right to silence “in the presence of the jury,” as did
the son in Brown. 12 F.3d at 54. Rather, it was Agent Rubalcaba’s
testimony that referred to her refusal to speak with him.
Moreover, unlike the prosecution in Brown, the record shows that
the government in the case sub judice did not make a “conscious and
8
In Watson, the court held that because there was no
showing that the prosecutor knew that the witness would invoke
the Fifth Amendment, there was no need for reversal. The
prejudice was not great enough. However, in the case sub judice,
the prosecutor had knowledge that Gutierrez had invoked the
privilege, and therefore intentionally elicited the comment from
Rubalcaba.
10
flagrant” effort to build a case based on inferences drawn from the
fact that Gutierrez had a lawyer with her and would not speak to
Rubalcaba. In fact, the prosecution did not bring out the fact
that Gutierrez owned the cell phone at issue.9 Rather, on cross
examination of Rubalcaba and the cell phone representative,
Insaulgarat’s counsel raised the point that the phone was in fact
owned by and registered to Gutierrez, that she previously had
stated she lost it and disconnected it, and that the phone records
did not actually reveal who placed a call from the phone, just to
whom it was registered. The defense counsel then offered into
evidence Insaulgarat’s cell phone records.
The line of questioning to which Insaulgarat objects came
about during the redirect of Rubalcaba, apparently only to show
that the government was not trying to hide Gutierrez. During the
prosecution’s closing argument, while the AUSA did address Olvera’s
use of the phone and his disappearance soon after Insaulgarat’s
arrest, no attention was called to Gutierrez or to the fact that
she refused to speak to Rubalcaba or had a lawyer. Clearly, the
government’s case was not to any extent based on, let alone built
9
According to the cell phone records that were entered into
evidence, Insaulgarat’s cell phone had frequently received calls
from a specified number in Laredo. It was established that this
number belonged to a cell phone owned by Gutierrez. However, on
direct examination the Voicestream Wireless representative did
not discuss Gutierrez’s ownership of the phone, and when
discussing the calls from the cell phone in question, Rubalcaba
stated on direct that the phone was being used by Olvera without
mentioning Gutierrez.
11
around, any inferences drawn from the fact that Gutierrez would not
speak to Rubalcaba (or had a lawyer) or, indeed, any inferences at
all about Gutierrez.
Moreover, even if we were to assume, arguendo, that the
comment was improper, any potential for prejudice caused by the
elicitation of the Gutierrez information was minor and limited, and
Rubalcaba’s testimony in that respect did not add any material
weight to the government’s case. Even if the jury inferred that
Gutierrez knew the phone was being used for illegal purposes, there
was no evidence or argument that Gutierrez and Insaulgarat had any
association whatsoever. The prosecution’s case in this respect
focused only on the fact that Olvera used the phone, that there
were multiple calls to the Laredo area, and that Insaulgarat
claimed he had only been to Laredo on one prior occasion. There
was no focus on Gutierrez. Additionally, even if her refusal to
speak to Rubalcaba did infer knowledge of criminal activity,
Insaulgarat’s defense did not rely upon innocent use of Gutierrez’s
phone, but rather upon the claim that Insaulgarat’s passenger made
the calls to Laredo, or that his (Insaulgarat’s) phone records had
been falsified. There is simply no reasonable possibility that the
verdict was influenced or affected by the complained of evidence
concerning Gutierrez.
We hold that the prosecution’s introduction of evidence about
Gutierrez’s having a lawyer and refusing to speak to Rubalcaba does
12
not constitute reversible error.
2. AUSA’s comment during cross examination of
Insaulgarat that he could be better understood if he told the
truth.
Insaulgarat took the stand in his own defense, claiming that
he was innocent of any wrongdoing related to the charge. During
his cross examination, the prosecution questioned Insaulgarat about
the cell phone documents and calls. Insaulgarat refused to answer
questions about the Laredo cell phone numbers and merely asserted,
without explanation or evidentiary support, that the phone records
were falsified by the phone company. The AUSA then asked him
whether he was saying that the phone company made up the calls to
and from Laredo but not the calls to his house. Insaulgarat
replied by stating, “I’m going to tell you something, and it’s just
maybe it’s a way of you understanding me better – excuse me, but
this is my defense. I’m innocent.” The prosecutor replied by
stating, “We would really understand you better if you told us the
truth.”
After the prosecutor made this comment, Insaulgarat’s defense
counsel objected and made a motion for mistrial. The court
responded by stating that the prosecutor’s comment “will be
stricken,” but overruled the motion for mistrial. The court
instructed Insaulgarat to simply answer the questions posed by the
prosecutor. Both during the course of the trial and in its
13
instructions to the jury, the court informed the jury that
statements by the lawyers are not evidence, and instructed the jury
to disregard anything stricken from the record. Insaulgarat,
however, claims that the AUSA’s comment deprived him of a fair
trial because his defense relied heavily on his credibility, and
this comment might have led the jury to believe that the government
had “extra-record knowledge” pertaining to Insaulgarat’s veracity.
It is arguable that this remark constituted improper cross-
examination. Cf. United States v. Anchondo-Sandoval, 910 F.2d
1234, 1238 (5th Cir. 1990) (“even the most inexperienced prosecutor
should be aware that it is improper and highly inappropriate to
interject his or her personal opinion of the defendant’s veracity
into the decision-making process”). However, the AUSA’s comment
here was a direct response to Insaulgarat’s comment, which was an
attempt at avoiding the AUSA’s prior question. See Washington, 44
F.3d at 1278 (looking at the prosecutor’s comments in context to
determine whether they were improper). In context, the AUSA’s one
brief spontaneous remark is most reasonably understood as referring
not to matters not in evidence but only to the facial
implausibility of Insaulgarat’s bizarre testimony about the phone
records. Because the judge did promptly strike the comment from
the record, and nothing like it was mentioned again during trial or
closing arguments, Insaulgarat has not shown that it “cast serious
doubt on the correctness of the jury’s verdict.” Iredia, 866 F.2d
14
at 117.10 Indeed, considering the record as a whole there is no
reasonable possibility that the remark by the AUSA influenced or
affected the verdict.
II. Admissibility of the Border Patrol agent’s report
At trial, during cross examination of Border Patrol Agent Jose
Ramos (Ramos), the defense sought to introduce into evidence a
report prepared by Ramos, who had searched Insaulgarat’s trailer at
the checkpoint.11 Insaulgarat wanted to use the report to establish
that he denied knowledge of the presence of the marihuana at the
time of his arrest.
A. Standard of Review
A district court’s decision concerning the admission of
evidence is generally reviewed for abuse of discretion. United
States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999). A district
court abuses its discretion if it bases its decision on an error of
10
We recognize the appellant’s argument that this Court has
found that merely sustaining an objection and striking the
objectionable prosecutorial comment is not always sufficient to
remove the taint of the objectionable comment. See United States
v. Labarbera, 581 F.2d 107, 109 (5th Cir. 1978). However, in
that case, the prosecutor made more than one improper comment
about evidence outside the record, such as the fact that the
defendant was involved in other criminal misconduct, and that the
prosecutor had knowledge of evidence which was not before the
jury and which showed guilt of the crime at issue. The taint in
that case was much more severe and plain than that in the case
sub judice. Here, the jury instruction was clearly enough to
remove any taint.
11
The portion of the report at issue indicated that “[a]fter
[Insaulgarat] was advised of his rights, he claimed he did not
know the marijuana was inside the trailer.”
15
law or a clearly erroneous assessment of the evidence. United
States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998), cert. denied,
526 U.S. 1117 (1999). If the district court erred in its
evidentiary ruling, this Court must then decide whether the error
was harmless. Cantu, 167 F.3d at 203. In determining whether the
error was harmless, this Court considers the importance of the
evidence to the prosecution’s case, whether it was cumulative,
whether it is corroborated or contradicted by other evidence on
material points, the extent of cross-examination, and the overall
strength of the prosecution’s case. United States v. Edwards, 303
F.3d 606, 623 (5th Cir. 2002).
B. At Trial
On direct, Agent Ramos testified to the discovery of marihuana
in the trailer, but he did not testify to anything the defendant
said or did not say after the marihuana was discovered, nor did he
testify as to any report he prepared. On cross examination, the
defense attempted to ask Agent Ramos what the defendant had said at
the time of his arrest when he was asked whether he knew his
trailer had marihuana in it. However, the court sustained the
government’s hearsay objection, and did not allow the agent to
testify as to what Insaulgarat’s response was.12 Defense counsel
12
Insaulgarat does not appeal that ruling, or any other
aspect of the cross examination, and instead relies only on the
hearsay exception in its relation to the report. Regardless, the
report, and anything Insaulgarat may have said to Ramos at the
time of his arrest, was not addressed on direct, and the scope of
16
was permitted only to ask agent Ramos, “did you ask Mr. Insaulgarat
if he knew that this trailer had marihuana in it, yes or no?” and
Agent Ramos responded affirmatively. Defense counsel admitted that
he was not trying to impeach Ramos by asking these questions,
because Ramos had not testified to his report or to what the
defendant said or did not say. The court did not allow the report
into evidence, and denied the defendant’s proffer of the report
outside the presence of the jury.
C. Discussion
Insaulgarat claims that the district court erred in excluding
the border patrol report in violation of Federal Rule of Evidence
803(8)(B), the public records exception to the hearsay rule.
However, the district court stated that in criminal cases the
803(8) exception does not apply to reports made by police and other
officers, and therefore declined to admit the evidence and held
that the report could only be admitted for impeachment purposes.
Though hearsay evidence is generally excluded, there is an
exception for public records and reports. Federal Rule of Evidence
803(8) states that a hearsay exception exists for:
“Records, reports, statements, or data compilations, in
cross cannot exceed that of direct, so the court did not err in
disallowing the Agent’s response. See U.S. v. Lowenberg, 853
F.2d 295, 300 (5th Cir. 1988) (“Federal Rule of Evidence 611
makes clear that a trial judge is not required to permit
cross-examination that exceeds the scope of the direct
examination.”).
17
any form, of public offices or agencies, setting forth
(A) the activities of the office or agency, or (B)
matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police
officers and other law enforcement personnel . . .” Fed.
R. Evid. 803(8) (emphasis added).
Appellant contends that the rule in fact only intended to
prevent prosecutors from using police reports as evidence against
criminal defendants. Appellant cites 5 Weinstein’s Federal Evid.
§ 803.10(5) at 803-102 (2003), and United States v. Smith, 521 F.2d
957, 968[-69 n. 24] (D.C. Cir. 1975) in support of his argument
that most courts have concluded that Congress did not intend for
these reports to be excluded when the defendant seeks to introduce
them into evidence. Therefore, Insaulgarat claims, the district
court’s ruling was an abuse of discretion and the error was not
harmless because this report would have done much to bolster the
credibility of his own version of the events “by showing that his
protestations of innocence were not a fabrication for trial, but
had been made from the outset of the case.”
The plain language of the rule does not distinguish between a
defendant’s and a prosecutor’s use of a police report. In United
States v. Sharpe, 193 F.3d 852, 868 (5th Cir. 1999), the defendant
appealed the refusal to admit exculpatory FBI lab reports, but we
applied the rule according to its terms, holding that “Rule
803(8)(B) excludes ‘matters observed by police officers and other
law enforcement personnel’ in criminal cases.” There is, however,
18
substantial authority, such as Smith, supporting Insaulgarat’s
position. Sharpe has been criticized, see 4 SALTZBURG, MARTIN & CAPRA,
FEDERAL RULES OF EVIDENCE MANUAL, § 803.03[8][1][iii], at 803-197
(LexisNexis 8th ed. 2002), but we are bound by the decisions of
Fifth Circuit panels. Furthermore, even assuming, arguendo, that
the district court did err by excluding this report, any error was
clearly harmless.
Though Insaulgarat claims that the report would have bolstered
his credibility, the evidence contained in the report was
ultimately presented to the jury, though via another source: At
trial, Insaulgarat himself testified that at the time of his
arrest, he told the federal agents at the checkpoint that he had no
knowledge of the marihuana in his trailer. Additionally, Agent
Rubalcaba’s testimony about what Insaulgarat told the agents at the
checkpoint mentioned nothing about Insaulgarat’s knowledge of the
marihuana; it is highly likely the jury would realize that if
Insaulgarat had admitted knowledge of the marihuana at the time of
his arrest, the agents would have testified to that effect. The
purpose that the report would have served was in fact established
by other trial evidence, making it cumulative. Notably, there was
no evidence, nor did the government ever contend, to the contrary.
Therefore, the court’s failure to admit the report did not likely
19
affect the outcome of the trial.13
III. A conviction under the Florida Aggravated Stalking statute is
not a “crime of violence.”
Though Insaulgarat did not raise the objection in the district
court, he argues that he was erroneously sentenced as a career
offender because his 1993 Florida conviction for aggravated
stalking should not be considered a crime of violence under
U.S.S.G. § 4B1.2(a). We agree.
A. Standard of Review
Interpreting a guideline such as the career offender provision
in section 4B1.1 is a question of law generally subject to a de
novo review. United States v. Charles, 301 F.3d 309, 312-13 (5th
Cir. 2002) (en banc). However, where a defendant fails to object
below, this Court reviews for plain error. United States v.
Meshack, 225 F.3d 556, 575 (5th Cir. 2000). To establish plain
error, a defendant must show the following: (1) there is an error;
(2) that is clear or plain; (3) that affects the defendant’s
substantial rights; and (4) that seriously affects the fairness,
13
Insaulgarat does not argue on appeal that the refusal to
admit the report wrongfully forced him to take the stand, though
he did make this argument at trial. Accordingly, any such claim
has been abandoned. In any event, such claim would be merely
theoretical because the jury would have no reason to assume that
Insaulgarat had admitted (or had not denied) his guilt because,
were that the case, the agents would obviously have so testified.
Moreover, with so much evidence against Insaulgarat, he
effectively had to take the stand if he wanted to stand a chance
of acquittal.
20
integrity or public reputation of judicial proceedings. Id.
B. Discussion
Under section 4B1.1 of the Sentencing Guidelines, a defendant
may be sentenced as a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed the
instant offense of conviction, (2) the offense of conviction is a
felony that is either a crime of violence or a controlled substance
offense, and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense. Insaulgarat was over eighteen, the instant conviction is
a felony controlled substance offense, and Insaulgarat has two
prior felony convictions, one of which was undisputably for a crime
of violence. At issue is whether his only other prior felony
conviction, namely his aggravated stalking conviction under Florida
Statute section 784.048(4), qualifies as a “crime of violence.”
Because we hold that it does not, it was error to have sentenced
Insaulgarat as a career offender.
For these purposes, a “crime of violence” is any offense under
federal or state law that is punishable by imprisonment for a term
exceeding one year and “(1) has as an element the use, attempted
use, or threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
21
U.S.S.G. § 4B1.2(a). Furthermore, Application Note 1 to this
section advises that a
“‘crime of violence’ includes murder, manslaughter,
kidnaping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as ‘crimes of violence’ if (A) that offense has
as an element the use, attempted use, or threatened use
of physical force against the person of another, or (B)
the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted involved use
of explosives (including any explosive material or
destructive device) or, by its nature, presented a
serious potential risk of physical injury to another.”
§ 4B1.2 comment. (n.1).
See generally U.S. v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999)
(“[C]ommentary in the Guidelines Manual that interprets or explains
a guideline is authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.”).
If the prior conviction is not one of the enumerated offenses,
and does not have use (or threatened or attempted use) of force as
an element, a categorical approach is taken to determine whether
the charged count of conviction, by its nature, presented a serious
potential risk of physical injury. United States v. Serna, 309
F.3d 859, 862 (5th Cir. 2002). Specifically, this Court has held
that under section 4B1.2(a)(2), an offense should only be
considered a crime of violence if, from the face of the indictment,
the crime that was charged presents a serious potential risk of
physical injury. See, e.g., United States v. Lee, 310 F.3d 787,
22
790-91 (5th Cir. 2002); United States v. Charles, 301 F.3d 309, 314
(5th Cir. 2002) (en banc). Physical injury need not in fact
result, but the indictment must make it clear that the crime
charged in fact posed the risk. Lee, 310 F.3d at 790-91. “If an
indictment is silent as to the offender’s actual conduct, we must
proceed under the assumption that his conduct constituted the least
culpable act satisfying the count of conviction.” U.S. v. Houston,
364 F.3d 243, 246 (5th Cir. 2004); see also Serna, 309 F.3d at 863.
According to the pre-sentence investigation report (PSR),
Insaulgarat was arrested in Florida in 1993 and charged with
aggravated stalking, armed burglary, sexual battery, and
kidnaping.14 At the time of this arrest, Insaulgarat already had
an injunction against him for domestic violence against a woman
(SN). In November of 1993, a jury found Insaulgarat guilty of
aggravated stalking and misdemeanor battery, a lesser included
14
The PSR, based upon certain investigative reports,
indicates that the incident that led to his aggravated stalking
arrest began with Insaulgarat hiding in some bushes outside of
SN’s home. When she arrived home and was opening the door,
Insaulgarat approached her, placed a pocket knife to her throat,
covered her mouth, and told her not to make any noise. He then
pushed her into the residence, locked the door, tore off her
clothes and sexually assaulted her. We need not, however, look
to the facts assertedly underlying the stalking offense to
determine whether it is a crime of violence; rather, for purposes
of § 4B1.2(a) we look only to the fact of conviction and the
statutory definition of the prior offense, and, in appropriate
cases, the indictment. United States v. Rodriguez-Rodriguez, 323
F.3d 317, 318-19 (5th Cir. 2003) (per curiam).
23
offense, and he was sentenced to three years in prison.15 Then, in
May of 1995, Insaulgarat was arrested and convicted of aggravated
assault with a firearm and false imprisonment.16
It is undisputed that Insaulgarat had at least one prior
conviction which was a crime of violence (the 1995 aggravated
assault). Therefore, the focus is now on whether the aggravated
stalking conviction was also clearly17 not a crime of violence. The
aforementioned facts as set forth in the PSR indicate that the
15
In Florida in 1993, a person has committed misdemeanor
battery if he “(a) [a]ctually and intentionally touches or
strikes another person against the will of the other; or (b)
[i]ntentionally causes bodily harm to an individual.” Fla. Stat.
Ann. § 784.03 (1993). This misdemeanor battery charge cannot
satisfy the definition of a crime of violence, and the original
indictment for sexual battery was not charged in the count of
conviction. To qualify as a career offender, a defendant must
have had at least two prior felony convictions of either a crime
of violence or a controlled substance offense. Therefore,
Insaulgarat’s misdemeanor battery conviction does not qualify
under the career offender consideration.
16
This qualifies as Insaulgarat’s uncontested prior felony
crime of violence conviction for purposes of the career offender
sentence, and was unrelated to the domestic violence injunction.
17
As the issue was not raised below, we apply the plain
error standard. Because Insaulgarat was sentenced as a career
offender, the guideline range for the offense of conviction was
262-327 months. He was sentenced to 262 months, the bottom of
the range. However, if aggravated stalking is not a crime of
violence for these purposes, and accordingly Insaulgarat is not a
career offender, the range would be from 97-121 months. Because
the sentence imposed upon Insaulgarat is more than twice what it
would be if the aggravated stalking offense were not a crime of
violence, Insaulgarat has clearly presented an error that affects
his substantial rights and the fairness of judicial proceedings.
Therefore, we are left to determine whether the error here was
clear.
24
aggravated stalking offense did indeed involve physical injury.
However, pursuant to section 4B1.2(a), the question here is whether
the Florida statute for aggravated stalking requires the use, or
threatened or attempted use, of force, or whether the conduct
alleged in the indictment presents a serious potential risk of
physical injury.
The Florida aggravated stalking statute prohibits:
“Any person who, after an injunction for protection
against repeat violence pursuant to § 784.046, or an
injunction for protection against domestic violence,
pursuant to § 741.30, or after any other court-imposed
prohibition of conduct toward the subject person or that
person’s property, knowingly, willfully, maliciously, and
repeatedly follows or harasses another person commits the
offense of aggravated stalking, a felony of the third
degree . . .” Fla. Stat. Ann. § 784.048(4) (1993)
(emphasis added).
Florida courts have interpreted this statute such that the
elements of aggravated stalking are “knowledge of an injunction and
knowingly, willfully, maliciously, and repeatedly following or
harassing the beneficiary of the injunction.” See State v.
Johnson, 676 So.2d 408, 411 (Fla. 1996). In Florida, harassment is
defined as “engag[ing] in a course of conduct directed at a
specific person that causes substantial emotional distress in such
person . . .” Fla. Stat. Ann. § 784.048(1)(a). On its face, the
statute, and in turn the elements of the offense, do not require
any use, or threatened or attempted use, of physical force.
We must therefore look to the indictment to determine whether
the crime charged presents a serious potential risk of physical
25
injury to a person. The term “domestic violence,” as it is used in
the Florida statute, is defined as “any assault, battery, sexual
assault, sexual battery, or any criminal offense resulting in
physical injury or death of one family or household member by
another who is or was residing in the same single dwelling unit.”
§ 741.30(1)(a) (1993).
Insaulgarat’s indictment count for aggravated stalking stated:
“LUIS ENRIQUE INSAULGARAT, on or about JANUARY 31, 1993,
in the County and State aforesaid, did unlawfully and
feloniously commit aggravated stalking upon [SN] by
knowingly, willfully, maliciously, and repeatedly
following or harassing [SN] after the entry against the
defendant of: AN INJUNCTION FOR PROTECTION AGAINST
DOMESTIC VIOLENCE PURSUANT TO 741.30 Fla. Stat., in
violation of 84.048(4) Fla. Stat., contrary to the form
of the Statute in such cases made and provided, and
against the peace and dignity of the State of Florida.
(emphasis added).
In United States v. Espinoza, No. 02-51326 at 3-4 (5th Cir.
May 8, 2003) (unpublished), this Court held that under plain error
review, a conviction under Colorado’s stalking statute was not a
crime of violence under U.S.S.G. § 2L1.2.18 Although the Colorado
statute was for stalking, not aggravated stalking, a person commits
the Colorado offense if he “[r]epeatedly follows, approaches,
contacts, places under surveillance, or makes any form of
communication with another person . . . in a manner that would
18
While § 2L1.2 uses the same definition for crime of
violence as § 4B1.2(a), under § 4B1.2 a court may not only look
to the elements of the crime, but also to the charged conduct in
the indictment to determine if the conduct charged by its nature
presented a serious potential risk of physical injury.
26
cause a reasonable person to suffer serious emotional distress and
does cause that person . . . to suffer serious emotional distress.”
Colo. Rev. Stat. § 18-9-111(4)(b)(III) (2003). In that case the
government had conceded that the defendant’s stalking offense did
not include an element that required proof of use, attempted use,
or threatened use of physical force. Therefore, this Court
determined that the defendant’s stalking conviction did not meet
the definition of a crime of violence.
It appears that the only other court to have addressed the
issue of whether a stalking offense is a crime of violence is the
Ninth Circuit.19 In United States v. Jones, 231 F.3d 508, 519-20
(9th Cir. 2000), the court analyzed the California stalking
statute, which states that “any person who willfully, maliciously,
and repeatedly follows or harasses another person and who makes a
credible threat with the intent to place that person in reasonable
fear for his or her safety, or the safety of his or her immediate
family, is guilty” of stalking. Cal. Penal Code § 646.9(a). In
that case, the appellant argued that the element of “threat to
safety” did not necessarily involve a threat of physical force as
is required under section 4B1.2(a)(1). The district court
disagreed, but after the defendant had been sentenced, the
19
But see U.S. v. Bassham, 162 F.3d 1165 (table) (8th Cir.
1998) (Holding, in an unpublished, table opinion that the
“district court correctly found that Bassham's earlier
convictions for attempted burglary and stalking were crimes of
violence for career offender sentencing under the guidelines.”)
27
California Court of Appeal refused to interpret “safety” to mean
physical safety only. Therefore, the Ninth Circuit vacated the
sentence, because on its face the statute was not limited to
physical injury, and therefore was not a crime of violence. Jones,
231 F.3d at 519-20.
A difference between Insaulgarat’s aggravated stalking offense
and those in Jones and Espinoza is that Insaulgarat’s indictment
specifically alleged that an injunction had been previously issued
against him under the domestic violence law. Here, the crime for
which Insaulgarat was convicted resulted from following or
harassing the victim with the knowledge that there was an
outstanding injunction against him for her protection. The actus
reus of this crime was the following or harassing. The issuance of
an injunction, even one for domestic violence, is a civil matter.
Here, the face of the indictment does allege that SN was the
beneficiary of the injunction against Insaulgarat and the victim of
the aggravated stalking. However, to convict for aggravated
stalking, the jury in this case only needed to find that an
injunction to protect SN was outstanding against Insaulgarat, not
that the victim was in fact ever threatened or in danger. So long
as there was documentation that a judge in a civil case had
previously entered such an injunction, that element of the crime of
aggravated stalking was met. To convict for aggravated stalking,
it does not matter whether that injunction had been properly
28
issued, and it does not matter whether the injunction was violated;
it matters only that the injunction existed.
The government asserts that because an injunction for domestic
violence had been previously issued, it necessarily follows that
the person being stalked has a reasonable fear that he or she will
be a victim, as he or she likely was before, and the stalking
presents risk of harm to that person by its nature. However, there
are forms of harassment that necessarily do not by their nature
involve conduct that presents a serious risk of physical harm. For
example, harassment could be mere repetitive phone calls or suicide
threats, and when an indictment is silent as to the offender’s
actual conduct, as it is here, we proceed under the assumption that
his conduct constituted the least culpable act satisfying the count
of conviction.20 Houston, 364 F.3d at 246. The existence of a
previous injunction against domestic violence does not turn these
acts of harassment into conduct that necessarily involves serious
risk of injury.
Therefore, though we are permitted to look to the underlying
charging document, it does not matter for our purposes here today
20
Although we do in fact have information concerning the
circumstances underlying the indictment in the case sub judice,
because those circumstances are not alleged on the face of the
indictment, and rather, the indictment merely tracks the language
of the aggravated stalking statute, we must assume the least
culpable conduct consistent with the wording of the statute and
the indictment. In other words, we assume the least culpable
conduct which the jury was required to find in order to convict
under the statute and indictment.
29
whether the definition of “domestic violence” itself includes as a
requirement the potential risk of physical injury, or whether SN
was in fact a prior victim of domestic violence at the hands of
Insaulgarat. On its face, the aggravated stalking statute can be
violated without the use or threatened use of physical force, and
the additional information provided in the aggravated stalking
indictment about Insaulgarat’s underlying injunction does not
allege conduct which, by its nature, poses a serious potential risk
of physical injury.
We hold that Insaulgarat’s 1993 aggravated stalking conviction
(which is not one of the named offenses in section 4B1.2) does not
have as one of its elements the use, attempted use, or threatened
use of physical force, and that the conduct set forth in the
relevant count of the indictment by its nature does not involve a
serious potential risk of physical injury to another. This
conclusion clearly and plainly follows from the terms of section
4B1.2(a), the wording of the Florida statute and the indictment,
and our jurisprudence construing section 4B1.2. Therefore, it was
plain error to sentence Insaulgarat as a career offender, because
he did not have two prior felony convictions of either a crime of
violence or a controlled substance offense.
Conclusion
For the foregoing reasons, Insaulgarat’s conviction is
affirmed but his sentence is vacated and the cause is remanded for
30
resentencing consistent herewith.
CONVICTION AFFIRMED;
SENTENCE VACATED, and cause
remanded for RESENTENCING.
31