UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-9539
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE RODRIGUEZ, ARISTIDES
NAPOLES, and MARLENE GUERRA,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
(June 14, 1993)
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges
DeMOSS, Circuit Judge:
I.
On January 25, 1991, agents of the New Orleans Police
Department, Jefferson Parish Sheriff's Office and the Federal
Bureau of Investigation were involved in an investigation of a
suspected drug dealer, Estrella Del Sol. The agents observed Del
Sol drive a gray Blazer into the parking lot of the New Orleans
Motor Lodge (now known as the Howard Johnson Motel) in the 4200
block of Old Gentilly Road in New Orleans and park near a black and
white Blazer belonging to Aristides Napoles.
Earlier that day, the motel clerk, Norman Kunsky, noticed Del
Sol outside the hotel. Kunsky had also observed Aristides Napoles
and Marlene Guerra drive a black and white Blazer into the hotel
parking lot. He noted that a yellow Cadillac, driven by a man,
followed the black and white Blazer into the parking lot. Kunsky
could not identify the driver of the yellow Cadillac. Kunsky
testified at trial that Marlene Guerra entered the motel and
registered for one room for herself and Napoles, and one for the
other man. After Guerra had registered and left the motel lobby,
Kunsky observed that the black and white Blazer and the Cadillac
were moved to another location in the parking lot near the hotel
rooms.
Later, while surveilling the motel parking lot area, police
agents observed Napoles use keys to open the yellow Cadillac which
bore a Florida license plate. Napoles and a man later identified
as Jose Rodriguez got in the car, but did not leave. Napoles sat
on the passenger side of the car and Rodriguez sat in the driver's
seat. After a few minutes, Napoles and Rodriguez left the
Cadillac. The Cadillac was later determined to be owned by
Napoles's sister, Miriam Napoles.
Shortly thereafter, Napoles, Guerra, and Rodriguez left the
motel in the black and white Blazer. The agents followed the three
to a storage facility where Guerra was observed placing a brown
paper bag in a locker. The agents stopped the defendants at the
facility. Guerra, the lessee of the storage locker, gave the
agents consent to search the locker. Agents searched the locker
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and found a brown paper bag containing a triple-beam scale with a
trace of white powder, which later tested positive for cocaine, as
well as plastic bags and aluminum foil.
Guerra denied that she owned the yellow Cadillac or had any
knowledge, or that the other defendants had any knowledge of it.
Napoles and Rodriguez also denied to the agents any knowledge of
the yellow Cadillac.
Meanwhile, back at the motel, a drug-detection dog alerted to
the passenger side of the yellow Cadillac; and after obtaining a
search warrant for the car, the agents retrieved a kilogram of
cocaine, valued at approximately $28,000-$32,000, wrapped in
aluminum foil, stashed behind the firewall.
The defendants were arrested and were taken to jail on
that same day.
A jury convicted Rodriguez, Napoles, and Guerra of
conspiracy to possess with intent to distribute and possession with
intent to distribute one kilogram of cocaine. The court sentenced
Napoles to serve concurrent terms of 106 months of imprisonment on
each count, to pay a $15,000 fine, and to be placed under
supervised release for concurrent five-year terms; Guerra to serve
concurrent terms of sixty months on each count, to pay a $10,000
fine, and to be placed under supervised release for concurrent
terms of five years and Rodriguez to serve concurrent terms of
sixty-six months on each count and to be placed under supervised
release for concurrent four-year terms. On appeal the defendants
raised four grounds for relief as follows:
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1. Rodriguez's right to counsel was violated.
2. The evidence was not sufficient to support any of the
defendants' convictions.
3. The voir dire violated Napoles' and Guerra's due process
rights.
4. The court erred in finding that Rodriguez was not entitled
to an adjustment from the Guidelines sentencing range because he
was a minor participant.
Because we REVERSE the trial court's conviction of Rodriguez,
we do not reach the issues as to Rodriguez's complaints in Ground
two and four. We AFFIRM the trial court's actions as to all other
grounds involving defendants Napoles and Guerra.
II.
WHETHER RODRIGUEZ'S RIGHT TO COUNSEL WAS VIOLATED.
Rodriguez contends that the in-custody statement taken from
him on February 1, 1991 was taken in violation of his Sixth
Amendment right to counsel and is therefore clear error.
Rodriguez had been in custody of the State since January 25,
1991, charged with possession with the intent to distribute the
cocaine in question in the State of Louisiana and had appeared in
court and been appointed counsel. On February 1, 1991, FBI Agent
John Cataldi went to the jail where Rodriguez, Guerra and Napoles
were being held in custody and took statements from each of the
defendants. Rodriguez complains that Agent Cataldi made no effort
to contact his appointed counsel. Rodriguez argues that because he
was in custody, had been arraigned and appointed counsel on the
same identical charges in the State courts and did not initiate the
contact with the Agent that led to the statement, the Agent's
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contact with him was police initiated and therefore there was no
valid waiver of his Sixth Amendment right. Michigan v. Jackson,
475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986). The right
to counsel under these circumstances, he claims, raises compliance
with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
On September 18, 1991, the court held a hearing to determine
whether to suppress the February 1, 1991 statements made by
Rodriguez, Guerra and Napoles and a statement which was taken from
Rodriguez on the day he was arrested, January 25, 1991. At the
hearing, Rodriguez's attorney objected to the hearsay nature of
Cataldi's testimony concerning the conversation he had with Shaw
that resulted in the February 1 contact with the defendants. The
judge instructed Cataldi to limit his testimony only to
conversations he had had with the parties in the case. The
February 1 statement made by Rodriguez was never introduced at the
suppression hearing and therefore no ruling was made as to its
admissibility by the court and the January 25 statement, although
ruled admissible, was never introduced at trial.1
Prior to trial, the prosecutor and Rodriguez's counsel
stipulated that if Cataldi were called to testify, he would testify
that in the February 1 interview, Rodriguez gave him a statement
admitting that (i) Rodriguez drove from Miami to New Orleans in a
small yellow vehicle different from the one narcotics agents
1
The district court ruled that all statements made by
Guerra and Napoles were admissible. However, neither defendant
contests this ruling on appeal.
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searched; (ii) Rodriguez met Napoles and Guerra at a gas station
off interstate highway I-10 somewhere between Miami and New
Orleans; (iii) Rodriguez followed Guerra and Napoles who were in a
black and white Blazer to the New Orleans Motor Lodge; and (iv)
Guerra rented two rooms for them and, after a while, Rodriguez,
Guerra and Napoles took a ride in the gray Blazer, when they were
stopped by the police.
Rodriguez's attorney stated at trial that although she had
agreed to this stipulation, she wanted the record to reflect it was
simply a stipulation as to what Cataldi would testify. She made it
clear that the stipulation "was in no way to negatively impact on
any previous motions."
At the trial on September 23, 1991, the government attempted
to introduce the February 1 statement by Rodriguez to Cataldi
whereupon Rodriguez's attorney asked the judge to hold a hearing
out of the presence of the jury to determine whether the statement
was voluntarily given pursuant to Title 18 U.S.C. § 3501.2
2
8 U.S.C. 3501. Admissibility of confessions
(a) In any criminal prosecution brought by the United
States . . ., a confession as defined in subsection (e) hereof,
shall be admissible in evidence if it is voluntarily given.
Before such confession is received in evidence, the trial judge
shall, out of the presence of the jury, determine any issue as to
voluntariness. If the trial judge determines that the confession
was voluntarily made it shall be admitted in evidence and the
trial judge shall permit the jury to hear relevant evidence on
the issue of voluntariness and shall instruct the jury to give
such weight to the confession as the jury feels it deserves under
all the circumstances.
(b) The trial judge in determining the issue of
voluntariness shall take into consideration all the circumstances
surrounding the giving of the confession, including (1) the time
elapsing between arrest and arraignment of the defendant making
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At that hearing, the government put Agent Cataldi on the
stand; and Cataldi testified that he had received a call from Gary
Shaw, a co-defendant of Rodriguez, Guerra and Napoles and that Shaw
indicated to Cataldi that "they" all wanted to speak to him. He
testified that Shaw made no mention of anyone in particular.
Cataldi testified that he interviewed the defendants each
individually and asked them if they wanted to speak to him.
Cataldi said that he told each defendant: "I understand you want to
speak with me" and "you can have your attorney here if you wish."
However, Cataldi testified that he did not ask Rodriguez whether he
had any contact with Shaw. Cataldi also testified that he knew
Rodriguez was represented by counsel and was in custody.
After confirming that Rodriguez wished to speak with him,
Cataldi testified that he had Officer Lejarsa advise Rodriguez of
his rights through the use of a Spanish "advice of right" form.
After Rodriguez indicated that he understood his rights, and was
the confession, it was made after arrest and before arraignment,
(2) whether such defendant knew the nature of the offense with
which he was charged or of which he was suspected at the time of
making the confession, (3) whether or not such defendant was
advised or knew that he was not required to make any statement
and that nay such statement could be used against him, (4)
whether or not such defendant had been advised prior to
questioning of his right to the assistance of counsel; and (5)
whether or not such defendant was without assistance of counsel
when questioned and when giving such confession.
The presence or absence of any of the above-mentioned
factors to be taken into consideration by the judge need not be
conclusive on the issue of voluntariness of the confession.
(e) As used in this section, the term "confession" means
any confession of guilt of any criminal offense or any self-
incriminating statement made or given orally or in writing.
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willing to speak to the officers, he signed the waiver of rights
form and Cataldi then conducted the interview.
Rodriguez's counsel objected to the February 1 statement at
this § 3501 hearing because (i) the statement was an in-custody
statement, (ii) the agent knew that Rodriguez was represented by
counsel, (iii) there was no evidence that Rodriguez had called
Cataldi and asked him to come, and (iv) Cataldi's call had come
from another defendant [Shaw] who was not housed with Rodriguez.
The judge overruled this objection and allowed the statement.
When trial commenced, the government read the stipulation to
the jury regarding the February 1 interview of Rodriguez by
Cataldi.
The government first claims that this issue should be
dismissed because Rodriguez's attorney waived the 6th Amendment
claims because she stated on the record prior to trial that she had
no objection to the government going into the February 1 statement
as long as the government laid the predicate pursuant to 18 U.S.C.
35003 that "Rodriguez was advised to his right at the appropriate
time."
A review of the record does not support the government's
contentions. Rodriguez's attorney objected to the February 1
statement throughout the court proceedings and argued at the §3501
3
Although the record reflects that Counsel cited 18 U.S.C.
3500, "Demands for Production of Statements and Reports of
Witnesses" in her argument that the predicate be laid, it is
evident from the context in which the statute was cited and the
fact that Counsel later called for a § 3501 hearing at the
appropriate time during the trial, that the statute she meant to
cite was 18 U.S.C. 3501, "Admissibility of Confession."
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hearing that the government had failed to lay the proper predicate
because Cataldi's contact with Rodriguez was not legal.
The government next contends that should this Court find that
Rodriguez's attorney did not waive the 6th Amendment claims, this
issue is nevertheless without merit because it was Rodriguez who
initiated the contact with Cataldi and therefore Michigan v.
Jackson, 475 U.S. 625 is not applicable in this case. The Supreme
Court in that case held that "if police initiate interrogation
after a defendant's assertion, at an arraignment or similar
proceeding of his right to counsel, any waiver of the defendant's
right to counsel for that police-initiated interrogation is
invalid." 475 U.S. at 636. The government claims that Rodriguez
initiated the contact with Cataldi when he asked Shaw to call
Cataldi and invite Cataldi to come to the jail and speak with
Rodriguez.
The government also claims that in Edwards v. Arizona, 451
U.S. 477 (1981) the court recognized that a defendant may validly
waive his right to counsel through initiating further contact with
the officers and that that is what Rodriguez did here.
The rule in the Fifth Circuit is that a knowing and
intelligent waiver cannot be found once the Fifth Amendment right
to counsel has been clearly invoked unless the accused initiates
the renewed contact. See, United States v. Massey, 550 F.2d 300
(5th Cir. 1977); United States v. Priest, 409 F.2d 491 (5th Cir.
1969).
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Waivers of counsel must not only be voluntary, but must also
constitute a knowing and intelligent relinquishment or abandonment
of a known right or privilege, a matter which depends in each case
"upon the particular facts and circumstances surrounding that case,
including the background, experience and conduct of the accused."
Edwards v. Arizona, 451 U.S. at 1884 and 482.
After initially being advised of his Miranda rights, the
accused may himself validly waive his rights and respond to
interrogation. See North Carolina v. Butler, 441 U. S. 369, 99 S.
Ct., 1755, 60 L. Ed.2d 286 (1979). However, additional safeguards
are necessary when the accused has been appointed counsel. A valid
waiver of the right to have counsel present during interrogation
cannot be established by showing only that the accused responded to
police-initiated interrogation after being again advised of his
rights. Edwards v. Arizona, 451 U.S. at 478.
Had Rodriguez initiated the meeting on February 1, the police
could have lawfully listened to his voluntary statements and used
them against him at the trial. But this is not what the facts of
this case show. First, Agent Cataldi went to the jail on February
1, not because Rodriguez called him and said he wanted to speak to
him, but because he received a telephone call from Shaw, a co-
defendant who said "they" wanted to speak to him. Shaw never told
Cataldi who the individuals were who wanted to speak to him. Shaw
could have been referring to any one or more of the defendants.
Further, even if Shaw had specifically named Rodriguez as one
of the defendants who wished to speak to Cataldi, the evidence in
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the record of Cataldi's telephone conversation with Shaw should not
have been allowed in as testimony because it was hearsay. In
response to Rodriguez's Counsel's objection to Cataldi's testimony
because of the hearsay nature of the conversation, the judge
instructed Cataldi to limit his testimony to only conversations he
had had with parties in the case. Shaw was not a party in the
case. Without the hearsay testimony, there would have been no
evidence as to why Agent Cataldi went to the jail in the first
place.
There is no testimony that Rodriguez requested Shaw to call
Cataldi. Here, we find the interrogation of Rodriguez was at the
instance of the authorities, and his statement, made without having
had access to his previously appointed counsel, did not amount to
a valid waiver and hence was inadmissible. Edwards v. Arizona, 451
U.S. 477.
Accordingly, the trial court's judgment of conviction against
Rodriguez is reversed and remanded for a new trial, as to
Rodriguez.
III.
WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT
NAPOLES' AND GUERRA'S CONVICTION.
Napoles and Guerra argue that the evidence was insufficient to
convict them. In deciding the sufficiency of the evidence, the
court determines whether, viewing the evidence and the inferences
that may be drawn from it in the light most favorable to the
verdict, a rational jury could have found the essential elements of
the offense beyond a reasonable doubt. Glasser v. United States,
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315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v.
Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied,
U.S. , 112 S. Ct. 2952, 119 L. Ed. 2d 575 (1992).
Count I of the indictment charged that the defendants
knowingly and intentionally conspired with each other to possess
with intent to distribute approximately one kilogram of cocaine.
Count 2 charged that the defendants knowingly and
intentionally possessed with intent to distribute approximately one
kilogram of cocaine.
To establish that the defendants were guilty of a drug
conspiracy, the government had to prove that they had an agreement
with intent to distribute, that each had knowledge of the
agreement, and that they voluntarily participated in the
conspiracy. 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). An agreement may be inferred from concert of action,
participation from a "collocation of circumstances" and knowledge
from "surrounding circumstances." United States v. Espinoza-
Seanez, 862 F.2d 526, 537 (5th Cir. 1988). "Mere presence at the
scene and close association with those involved are insufficient
factors alone; nevertheless, they are relevant factors for the
jury." Sanchez, 961 F.2d at 1174. To prove conspiracy, the
government must prove at least the same degree of criminal intent
necessary for the underlying substantive offense. United States v.
Osgood, 794 F.2d 1087, 1094 (5th Cir. 1986), cert. denied, 479 U.S.
994, 107 S. Ct. 596 (1986). To prove possession of a controlled
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substance with intent to distribute, the government must prove
beyond a reasonable doubt the defendant's possession of the illegal
substance, knowledge, and intent to distribute. United States v.
Freeze, 707 F.2d 132, 135 (5th Cir. 1983). The necessary knowledge
and intent can be proved by circumstantial evidence. United States
v. Mitchell, 876 F.2d 1178, 1181 (5th Cir. 1989). This Court
has held that knowledge of the presence of a controlled substance
may be inferred from the exercise of control over a vehicle in
which the illegal substance is concealed. United States v. Diaz-
Carreon, 915 F.2d 951, 954 (5th Cir. 1990). If a hidden
compartment is involved, however, this Court requires "additional
evidence indicating knowledge--circumstances evidencing a
consciousness of guilt . . .," such as conflicting statements and
an implausible account of events. See United States v. Moreno-
Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986).
Napoles and Guerra challenge the sufficiency of the evidence
to convict them of the charges by pointing to the absence of a
knowing agreement. They argue that there was no evidence that
they brought the cocaine to New Orleans; that they traveled in the
car in which the cocaine was transported; that they ever touched or
saw the bags of cocaine found in the car; that they had any money
with which to buy the cocaine, or any substantial money which would
have come from the sale of such a great amount of cocaine or that
they ever looked inside the bag that Guerra carried to the storage
unit.
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Napoles and Guerra claim that the fact that they were
cooperative with the police is proof that they did not know that
the drugs were present. They allowed the police to search the
locker and the yellow Cadillac and neither owned the Cadillac.
They point out that there is no definite tie between the cocaine
found in Guerra's locker and the cocaine found in the Cadillac.
The evidence in this case is sufficient to prove all of the
elements mentioned above and therefore supports an inference of
agreement, knowledge and voluntary participation by these
defendants to convict them of conspiracy. The evidence includes a
kilogram of cocaine worth over $32,000 concealed in a car driven
from Miami to New Orleans; the defendants' access and personal
connection to the car in which the drug was concealed; traces of
cocaine on a scale found in a paper bag like the one defendant
Guerra placed in the locker which she controlled; and the
defendants' presence at the motel at the same time as one suspected
of trafficking cocaine into New Orleans.
Possession of "a larger quantity of cocaine than an ordinary
user would possess for personal consumption supports the finding
that defendants intended to distribute the drug. United States v.
Pineda-Ortuno, 952 F.2d 98, 102 (5th Cir. 1992), cert. denied,
U.S. , 112 S. Ct. 1990, 118 L. Ed. 2d 587 (1992).
Moreover, the defendants clearly exhibited the characteristics
of a "consciousness of guilt" because these defendants gave
conflicting statements as to their knowledge of the yellow
Cadillac. Diaz-Carreon, 915 F.2d at 955. When initially
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questioned in the storage facility, these defendants denied any
knowledge of the car. Guerra later admitted she knew the car was
registered to Napoles' sister. Napoles' denial of knowledge of a
vehicle owned by his sister that he was observed unlocking and
entering is an inconsistent statement.
Further, "[t]his Court has acknowledged that a 'less-than-
credible explanation' for a defendant's actions is 'part of the
overall circumstantial evidence from which possession and knowledge
may be inferred.'" Diaz-Carreon, 915 F.2d at 955. Neither Guerra
nor Napoles offer a credible explanation as to where and how they
met Rodriguez or why Guerra rented a room at the motel for
Rodriguez, a total stranger. It also seems incredible that Napoles
and Guerra would trust a total stranger to drive their car. This
Court has recognized that an "implausible account of the events
provides persuasive circumstantial evidence of the defendant's
consciousness of guilt." Diaz-Carreon, 915 F.2d at 955.
Therefore, we hold that a rational trier of fact could
determine that Napoles and Guerra had the requisite knowledge to
find them guilty beyond a reasonable doubt of possession with
intent to distribute.
IV.
WHETHER THE VOIR DIRE VIOLATED NAPOLES'
AND GUERRA'S DUE PROCESS RIGHTS.
Napoles and Guerra assert they were denied due process and the
guarantee of an impartial jury as a result of the trial court's
refusal to question potential jurors concerning the defendant's
15
Fifth Amendment privilege not to testify. Neither Napoles nor
Guerra testified at trial.
In United States v. Ledee, 549 F.2d 990, 992 (5th Cir. 1977),
cert denied, 434 U.S. 902, 98 S. Ct. 297, 54 L. Ed. 2d 188 (1977)
this Court held that absent an abuse of the discretion, it would
defer to the judgment of the district court as to the conduct and
scope of voir dire. Such an abuse of discretion will be found when
there is insufficient questioning to produce some basis for defense
counsel to exercise a reasonably knowledgeable right of challenge.
United States v. Sababu, 891 F.2d 1308, 1325 (7th Cir. 1989).
Defendants concede that the district court questioned the
jurors as to their ability to be impartial and to follow the law as
instructed at the end of the trial and instructed the jurors prior
to their deliberations as to the Fifth Amendment privilege.
Defendants also concede (i) that the controlling law in this
Circuit is that a trial court is not obligated to inquire as to
whether the prospective jurors would accept any particular
proposition of law; and (ii) that "the overall voir dire questions,
coupled with instruction given by the trial court at the close of
the case, adequately protected defendants . . . right to be tried
by a fair and impartial jury." United States v. Miller, 758 F.2d
570 at 573 (11th Cir. 1985), cert denied, 474 U.S. 994, 106 S. Ct.
406, 88 L. Ed. 2d 357 (1985).
Nevertheless, defendants urge this Court to overturn its prior
decision in Ledee and hold that inquiry into the jurors' views of
specific provisions of law, such as the right not to testify, is
16
required during voir dire when requested by the defense as a matter
of law. In support of their position the defendants cite a recent
Supreme Court death-penalty case, Morgan v. Illinois, 112 S. Ct.
2222, 119 L. Ed. 2d 492 (1992).
In Morgan, the defendant was convicted and the death penalty
was imposed. On appeal the defendant challenged his sentence on
the grounds that the voir dire was constitutionally inadequate
because the trial court refused the defense counsel's request that
the court ask jurors that if they found the defendant guilty, would
they automatically vote to impose the death penalty no matter what
the facts were? Id. at 2226.
The court recognized that voir dire is conducted under the
supervision of the trial court and "a great deal must, of
necessity, be left to its sound discretion." Id.
The court concluded that the trial court's discretion in the
conduct of voir dire and the restriction upon inquiries at the
request of counsel were "subject to the essential demands of
fairness."
The court found that the "general fairness" and "follow the
law" questions asked by the trial judge were not sufficient to
guarantee the defendant the right to the intelligent use of his
challenges for cause and peremptory challenges.
However, the court restricted its decision to reversing only
the defendant's death sentence and noted that its decision "had no
bearing on the validity of petitioner's conviction." Id. at 2235
n. 11.
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Moreover, there is no language in the opinion that indicates
that the court was intending to overrule the Fifth Circuits's
decision as to the discretion allowed trial courts in non-capitol
cases. The Morgan decision does not require this Court to
reexamine its earlier precedents in non-capital cases.
V.
CONCLUSION
We REVERSE Rodriguez's conviction and REMAND the cause to the
trial court for a new trial. We AFFIRM the judgment of conviction
and the sentences as to Napoles and Guerra.
c:br:opin:91-9539p.jm3
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