United States Court of Appeals,
Fifth Circuit.
No. 92-5506.
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dempsey Buford MERIDA, Defendant-Appellant.
March 5, 1993.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, DAVIS and JONES, Circuit Judges.
POLITZ, Chief Judge:
Dempsey Buford Merida was convicted in 1983 of multiple offenses stemming from his
maintenance of a drug manufacturing and importing enterprise. We affirmed on direct appeal.1
Merida moved to vacate his convictions under 28 U.S.C. § 2255; the district court denied relief. We
affirm.
Background
In 1983 a San Antonio grand jury returned a 21-count indictment against Merida and a jury
found him guilty on all counts. In affirming we noted the character and extent of the "Dempsey
Merida Organization," headquartered in Houston, Texas. We detailed a full account of the
international scope of the operation. For present purposes it suffices to observe that Merida headed
an organization dedicated to the production, importation, and distribution of drugs, including, most
notably, cocaine, heroin, marihuana, methamphetamine, and amphetamine. The evidence adduced
in an extended trial disclosed a number of collateral illegal activities aimed at supporting the
international distribution network, including the theft of heavy equipment and vehicles and, perhaps,
even homicide.
Merida now seeks to set aside his conviction because the trial court received, by his account,
1
United States v. Merida, 765 F.2d 1205 (5th Cir.1985).
12 "hearsay exhibits."2 Merida's trial counsel lodged vague objections to the admission of these
exhibits continually referring only to previous objections and motions made out of the presence of
the jury. The record reflects that those initial objections went to matters other than hearsay or the
confrontation clause, which Merida now advances.
The magistrate judge fo und that trial counsel did not present contemporaneous hearsay
objections to the ledgers and concluded that Merida had failed to demonstrate cause for this failure.
Merida objected to the magistrate judge's report and recommendation, arguing that his trial counsel
had in fact objected to the three ledgers. In response the government conceded that Merida objected
to one of the three ledgers, the first blue ledger. The district court then recommitted the matter to
the magistrate judge who again found Merida's claims with respect to the three ledgers barred for a
lack of objection or cause therefor; this time, however, she also found that the receipt of this
evidence was neither plain error nor prejudicial. Thus, according to the magistrate judge, Merida
could not have been harmed by his appellate counsel's failure to raise the issue because the error was
not sufficient to warrant reversal on appeal. The district court adopted the supplemental findings and
denied relief; Merida timely appealed.
Analysis
Merida advances two distinct claims. He maintains that the admission of the exhibits violated
Fed.R.Evid. 802 as well as his constitutional right to confrontation. He also argues that even if the
admission does not warrant collateral relief, the failure of his appellate counsel to pursue the hearsay
and confrontation quest ions on direct appeal rendered the assistance he received constitutionally
inadequate.3 We first consider admission of these exhibits as an independent source of constitutional
error.4
2
Much of Merida's argument assails the credibility of various government witnesses. Such
assessments are the function of the jury observing the witnesses. United States v. Sanchez, 961
F.2d 1169 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992)
(weighing credibility of witnesses is solely the province of the jury).
3
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
4
Before proceeding further, we stress that relief under 28 U.S.C. § 2255 is limited to cases in
which the petitioner suffers constitutional deprivation or "that narrow compass of other injury that
A. Admission of the Exhibits
Merida initially complained of the admission in evidence of 12 exhibits; three drug
ledgers—two blue and one red—showing receipts and disbursements, and nine other exhibits.5
Because he has abandoned his claims involving the nine nonledger exhibits we consider only the
ledgers.6
The district court and Merida disagree whether trial counsel preserved for collateral attack
the arguments Merida now advances. It cannot be gainsaid that a defendant's assertions of trial error
are ordinarily beyond review where he did not make contemporaneous objections.7 In such a case,
he must show both cause for the failure to object and actual prejudice from the asserted error. Failing
to acquit himself of either burden, Merida's position is totally dependent on our accepting his
interpretation of events at trial. This massive record is not new to this organ of t e court . A
h
revisiting persuades that the magistrate judge has correctly viewed this record.8
The admission into evidence of the three ledgers raises concerns under not only the rules of
evidence, but also the confrontation clause. The government contends that Merida's complaints are
barred by the doctrine of procedural default. The government alternatively contends that even if not
could not have been raised on direct appeal and would, if condoned, result in a complete
miscarriage of justice." United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.1981) (citations
omitted). That said, we look for error in the admission of evidence or in appellate counsel's
handling of the initial appeal which rises to the level of a constitutional deprivation. Because we
agree with the district court's conclusion that the claims are procedurally defaulted, we need not
also address at this point the court's conclusions that no harm resulted from the admission,
erroneous or otherwise, of these ledgers.
5
Of the remaining nine exhibits, the magistrate judge found seven were not hearsay and the
remaining two were not harmful.
6
After the magistrate judge's first report, which found the nine nonledger exhibits to have been
admitted for purposes other than to prove the truth of the matters asserted, Merida limited his
argument. Wesson v. Oglesby, 910 F.2d 278 (1990).
7
United States v. Shaid, 916 F.2d 984 (5th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct.
978, 117 L.Ed.2d 141 (1992).
8
The magistrate judge conducted a thorough review of the record and concluded that as to
each ledger, trial counsel simply failed to lodge hearsay or confrontation clause objections. Our
independent review of the record confirms this decision.
so barred, the evidence did not constitute hearsay or a violation of Merida's confrontation rights.9
The red ledger, denoted government's exhibit 1011 in the record, contains names, dates, and
details of drug transactions and was first introduced on October 12, 1983 during the testimony of
Charles Newlin, Merida's attorney and accomplice. The government asked Newlin if he could identify
the ledger. When he could not, defense counsel objected to further testimony about its contents:
"Your Honor, may I have a predicate? I object to the reference to the document. The witness has
said he is not familiar with the document." This objection was not sufficient to raise a question about
the hearsay character of the ledger, nor was the cited exchange between defense counsel and the court
about an early ruling on "James" matters which, we are all aware, relate solely to hearsay testimony
of coconspirators.
When the government asked Newlin if an entry in the ledger referred to him, Merida's counsel
objected "to any allusion to a document not in evidence." During the ensuing bench conference, any
mystery as to the basis for the objection was clarified. The government indicated that it would later
call the witness who retrieved the ledger to provide the necessary evidentiary predicate.10 It was clear
to all involved that defense counsel was objecting to testimony regarding the contents of a document
which had not yet been authenticated. It was also clear that counsel was not making an objection to
the hearsay nature of the ledger.11
The experienced trial judge conditionally admitted the ledger subject to the promised
testimony and instructed the jury of the conditional nature of its admission. The dispute surrounding
the admission of the red ledger ended with Chief Judge Sessions noting for the record that "1101 has
been offered by the government and has been admitted by the court subject to later rulings [emphasis
9
While we note that there is substantial support for the government's implicit argument that the
decision to object to these ledgers on only fourth amendment grounds reflects a prudent decision
to avoid meritless hearsay objections, we need not reach that issue.
10
The court was well within its discretion in ordering that testimony. See Fed.R.Evid. 611(a).
11
We might infer that counsel believed, as the government strenuously argues, that the ledger
entries were admissions of a party opponent, directly, or through a coconspirator. See United
States v. Postal, 589 F.2d 862 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40
(1979). As noted, we do not reach that issue.
added]."12 The missing predicate was later provided by the testimony of IRS Special Agent McCoy
who retrieved it from Merida's home.
Merida argues that defense counsel's request on October 19 for a "running bill," adopting
previous objections by reference, somehow preserved the hearsay and confrontation points. It did
not. The red ledger had already been admitted into evidence and any objection at this point would
have been untimely. In addition, the attempt to secure a running objection, even if we were inclined
to treat it as sufficient to preserve error, referenced only objections made to the blue ledgers and for
which counsel had been granted a continuing objection. The objections so referenced were not
hearsay objections; rather, counsel lodged still more vague objections referring to events occurring
earlier in the trial. A review in turn of those incidents confirms that counsel had then sought to
exclude the two blue ledgers as fruits of an illegal search. Such an objection is obviously not the
equivalent of or an adequate substitute for a specific hearsay objection. We would be hesitant to find
the request for a continuing objection sufficient to preserve errors to which it so vaguely referred;
we would not allow it to preserve error as to matters to which it did not refer at all.13
The two blue ledgers were received into evidence on October 18, 1983 over objection. Once
again counsel cryptically objected by "reurg[ing] the objection heretofore made." As noted above,
at this point counsel had not made any hearsay or confrontation clause objections to these ledgers.
Counsel apparently sought to preserve the question whether the seizure of the documents violated
the fourth amendment. His specific objection was sufficient to preserve that question alone. It was
not until October 19 that counsel objected to hearsay after further testimony regarding the contents
of the second blue ledger, exhibit 1102A. The magistrate judge viewed this as an objection to the
testimony of the witness, rather than to the ledger itself. In either event, the objection came well after
12
That the red ledger was admitted at this point was confirmed on October 18 when Judge
Sessions reminded defense counsel that the ledger had already been admitted and that objections
to the admission were no longer timely. At no point during the debate surrounding the admission
or use of this or any other ledger did counsel lodge a specific and timely hearsay or confrontation
clause objection.
13
Counsel had made specific hearsay and confrontational objections to other exhibits. He had
never requested nor received a running objection in lieu of repeating these objections, and had
never made such objections to any of the three ledger exhibits.
the admission of the exhibit; in fact, the objection came after this very witness had extensively
testified as to its contents.
B. Ineffective Assistance of Counsel on Appeal
Merida also claims that his appellate counsel furnished constitutionally inadequate assistance
by failing to brief the hearsay and confrontation clause issue o n appeal. An ineffective
appellate-assistance claim is governed by the same standard announced in Strickland, there applied
to ineffective assistance provided at trial.14 Under Strickland, a petitioner must show that appellate
counsel failed to perform according to reasonable professional standards which resulted in prejudice
to his appeal.
Merida is only entitled to collateral relief if, indulging the assumption that counsel's failure
to raise the issue was below reasonable professional standards, the admission of the exhibits would
have in fact occasioned reversal on appeal. Because no timely and specific objection preserved the
point at trial, Merida must demonstrate plain error in the admission.15 In light of the substantial
evidence of guilt apart from the ledgers, such as Newlin's testimony confirming their incriminating
aspects, we would not be persuaded to term any presumed error sufficient to warrant reversal even
if the point had been preserved. We therefore perforce find no manifest miscarriage of justice
warranting a reversal.
The judgment of the district court is AFFIRMED.
14
Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990).
15
An error is "plain" where leaving it uncorrected, despite the failure to protest below, would
result in a miscarriage of justice or undermine confidence in the judicial process. See United
States v. Ruiz, 860 F.2d 615 (5th Cir.1988).