IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-1732
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL IFY IWEGBU,
Defendant-Appellant.
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Appeal from the United States District Court for
the Northern District of Texas
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October 21, 1993
Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit
Judges.
REAVLEY, Circuit Judge:
Defendant Daniel Iwegbu appeals his conviction for
conspiracy to import heroin. He argues that the trial court
erred in failing to conduct a hearing on the voluntariness of his
alleged confession, and in failing to give a jury instruction
regarding the alleged confession. Because the district court's
errors, if any, do not rise to the level of plain error, we
affirm.
BACKGROUND
DEA agent Tim Stover, one of the officers who arrested
Iwegbu, testified that he interviewed Iwegbu after he was taken
to the DEA's Dallas offices. He stated that after reading Iwegbu
his rights, Iwegbu voluntarily confessed to his involvement in a
heroin smuggling operation. According to Stover, Iwegbu made
several incriminating statements, including an admission that he
had recruited Pam Jones and Veronica Baker (both of whom
testified against him) for the operation. Stover testified that
Iwegbu admitted that a large sum of cash seized from him by U.S.
Border Patrol agents was intended as payment to Jones, Baker, and
himself, as well as to cover expenses for the operation.
After the Government called seven witnesses and rested its
case, Iwegbu testified as the sole defense witness. His defense
was that Pam Jones was a spurned lover who had set him up. On
cross-examination, he denied making inculpatory statements to
Stover, and stated that he was not read his rights until just
before he left the DEA offices, after "they [had] kept me there
for a long time." He also claimed that Stover had insulted him,
threatened him with life in prison, and "told me I should help
them, you know." Stover denied telling Iwegbu that he should
cooperate with the Government, and denied "threatening him with
life in prison or anything like that."
DISCUSSION
Iwegbu complains that his testimony put in issue the
voluntariness of his alleged confession. Under 18 U.S.C. §
3501(a)(1985):
[A confession] 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
2
of the jury, determine any issue as to voluntariness.
If the trial judge determines that the confession was
voluntarily made . . . [he] shall instruct the jury to
give such weight to the confession as the jury feels it
deserves under all the circumstances.
The statute is written in mandatory language, and therefore
once an issue arises as to the voluntariness of a confession, the
district court should conduct a voluntariness hearing and give
the instruction required by the statute. In this case, Iwegbu's
counsel did not file a motion to suppress the confession, did not
request a hearing or instruction, and did not object to Stover's
testimony. We have held however that even when no request is
made for the hearing and instruction, the district court should
comply with the statute sua sponte when the evidence clearly
raises a question of voluntariness. United States v. Renteria,
625 F.2d 1279, 1283 (5th Cir. 1980) (requiring sua sponte
hearing)1; United States v. Oakley, 827 F.2d 1023, 1025-26 (5th
1
United States v. Espinoza-Seanez, 862 F.2d 526 (5th
Cir. 1988), holds that a failure to challenge the introduction of
a confession at trial, through an objection which makes clear
that a voluntariness hearing is being requested, precludes a
defendant from later raising on appeal the absence of a
voluntariness hearing. Id. at 535. This holding is inconsistent
with the holding in Renteria that the court should conduct a
hearing on its own motion once the issue of voluntariness is
clearly raised by the evidence. For three reasons, we are
inclined to follow Renteria. First, in this circuit, where two
panel opinions conflict, we are obliged to follow the earlier
one. Luna v. Department of Health and Human Serv., 948 F.2d 169,
172 (1991). Second, our reading of United States v. Olano, 113
S. Ct. 1770 (1993), discussed infra, is that the failure to
conduct a voluntariness hearing, as with other alleged errors by
the trial court, may be raised on appeal under FED. R. CRIM. P.
52(b) even if not brought to the attention of the district court,
but such error is only subject to review for plain error. Third,
even if we were writing on a clean slate, we would agree with
Renteria that the district court should conduct a voluntariness
hearing on its own motion once the issue is clearly raised by the
3
Cir. 1987) ("The trial court is also required to instruct the
jury . . . if the evidence raises a genuine question of
voluntariness, even though defendant's counsel may not have
requested such an instruction.").
We face two issues. First, did the evidence raise a genuine
issue of voluntariness, triggering the requirements of a hearing
and instruction? Second, if the issue of voluntariness was in
issue, did the district court's failure to conduct the hearing
and give the instruction sua sponte amount to reversible error?
We pretermit the first issue and assume that a genuine issue of
voluntariness was raised. Compare Renteria, 625 F.2d at 1282-83
(finding issue raised when defendant testified that DEA agent
told him that he could spend the rest of his life in prison, that
his mother was on her deathbed, that he had ruined his mother's
life, and that if he did not confess, his mother would be
arrested for harboring a fugitive).
Assuming arguendo that the issue of voluntariness was
raised, we turn to whether the district court's failure to give
the instruction and conduct the hearing constitutes reversible
error. Since there were no requests or objections raised in the
district court regarding the confession testimony, the errors
asserted on appeal must amount to plain error under the most
recent writing of the Supreme Court. United States v. Olano, 113
S. Ct. 1770, 1776-78 (1993); FED. R. CRIM. P. 52(b). Under Olano,
evidence, since § 3501(a) is written in mandatory language and is
not conditioned on a request for a hearing by the defendant.
4
errors not raised in the district court are treated as forfeited
errors and are subject to the plain error standard of review,
which "in most cases . . . means that the error must have been
prejudicial: It must have affected the outcome of the District
Court proceedings." Id. at 1778. A court of appeals should
correct a plain forfeited error if failing to do so would
"seriously affect the fairness, integrity or public reputation of
judicial proceedings." Id. at 1779. See also United States v.
Birdsell, 775 F.2d 645, 653 (5th Cir. 1985) ("Plain error . . .
must be obvious, substantial, and so basic and prejudicial that
the resulting trial lacks the fundamental elements of justice."),
cert. denied, 106 S. Ct. 1979 (1986). Under the plain error
standard of review, the defendant bears the burden of persuasion
with respect to prejudice. Olano, 113 S. Ct. at 1778. We review
a claim of plain error against the entire record. United States
v. Young, 105 S. Ct. 1038, 1046 (1985).
While Olano leaves open the possibility that some forfeited
errors can be corrected regardless of their effect on the outcome
of the trial, or that some errors should be presumed prejudicial,
113 S. Ct. at 1778, we conclude that such a special case is not
presented here. We hold that a defendant, complaining for the
first time on appeal of a failure to comply with § 3501(a), must
show that the error "had an unfair prejudicial impact on the
jury's deliberations." Young, 105 S. Ct. at 1047 n.14.2
2
Some of our prior cases suggest that certain errors by
the district court, including the failure to comply with §
3501(a), are plain error per se, but that such plain errors are
5
Applying this standard of review, we hold that the failure
to give the instruction and conduct the hearing was not plain
error. Regarding the hearing, the district court was faced with
a situation where the government witness insisted that the
confession was entirely voluntary, and the defendant insisted
that there had been no confession at all. Even if the court had
conducted a voluntariness hearing, the court would have had to
conclude that any confession given was given voluntarily. Hence,
such a hearing would not have affected the evidence presented to
the jury.3
not reversible if they are harmless. E.g., Oakley, 827 F.2d at
1026; Renteria, 625 F.2d at 1283. However, our reading of the
Supreme Court's decisions in Olano and Young, supra, is that
plain error, by definition, is "harmful" error, and that a per se
approach to harmful error should be avoided. Olano, 113 S. Ct.
at 1778 ("Normally, although perhaps not in every case, the
defendant must make a specific showing of prejudice to satisfy
the 'affecting substantial rights' prong of Rule 52(b)."); Young,
105 S. Ct. at 1047 n.14 ("A per se approach to plain-error review
is flawed. . . . [F]ederal courts have consistently interpreted
the plain-error doctrine as requiring an appellate court to find
that the claimed error not only seriously affected 'substantial
rights,' but that it had an unfair prejudicial impact on the
jury's deliberations. Only then would the court be able to
conclude that the error undermined the fairness of the trial and
contributed to a miscarriage of justice."). See also United
States v. Thetford, 676 F.2d 170, 180 n.19 (5th Cir. 1982)
("Plain error exists only if it affects substantial rights of a
party so basic that the infraction can never be treated as
harmless error."), cert. denied, 103 S. Ct. 790 (1983).
3
On appeal, Iwegbu does not seriously contend otherwise.
Nowhere in his appellate briefs does he argue that a hearing
would have convinced the district court that the confession, if
any, was coerced. His "Statement of the Issue" in his opening
brief addresses only the failure to give the instruction, as do
his "Summary of the Argument" and his headings under the argument
sections of his opening brief.
6
Based on all the circumstances in this case, we also
conclude that the failure to give a voluntariness instruction, if
error at all, does not constitute plain error. First, the
district court did give a general instruction on the credibility
of witnesses.4 A voluntariness instruction focuses the jury on
the need to exercise extra caution and attention when considering
confession testimony. We agree with Iwegbu that a general
credibility instruction does not satisfy the requirements of §
3501(a). See United States v. McLernon, 746 F.2d 1098, 1120 (6th
Cir. 1984). However, in our view the general instruction does
limit the possible prejudice in failing to give the voluntariness
instruction, and hence informs our analysis of whether the plain
error standard is met. See United States v. Hoac, 990 F.2d 1099,
1109-10 (9th Cir. 1993) (general credibility instruction
4
The jury was instructed as follows:
You are the sole judges of the credibility or
"believability" of all witnesses and the weight to be
given to their testimony. You should carefully
scrutinize all the testimony given, the circumstances
under which each witness has testified, and every
matter in evidence which tends to show whether a
witness is worthy of belief. In weighing the testimony
of a witness you should consider the relationship of
the witness to the government or to the defendant; the
witness' interest, if any, in the outcome of the case;
the witness' manner of testifying; the witness'
opportunity to observe or acquire knowledge concerning
the facts about which the witness testified; the
witness' candor, fairness and intelligence; and the
extent to which the witness has been supported or
contradicted by other believable evidence. You may, in
short, accept or reject the testimony of any witness in
whole or in part.
7
supported conclusion that failure to give voluntariness
instruction was not plain error).
Second, Iwegbu denied making any incriminating statements,
and hence shifted the focus of the trial away from the issue of
voluntariness and toward the issue of whether the statements were
made at all. Again, we agree with Iwegbu that denying that a
confession was made does not render § 3501(a) inapplicable.
United States v. Barry, 518 F.2d 342, 346-47 (2d Cir. 1975)
("[Section 3501] is not qualified . . . by a defendant's denial
that he has ever made any inculpatory statements. . . . A
defendant may properly claim that he made no incriminating
statements and that any statements which the jury might find that
he made were coerced."). However, this testimony limited any
possible prejudice resulting from the failure to give the
instruction, by shifting the emphasis of the trial away from the
voluntariness issue. Cf. United States v. Gonzalez, 548 F.2d
1185, 1190 (5th Cir. 1977) ("Furthermore, there does seem
something inconsistent about appellant complaining he was never
given a hearing on the issue of Miranda warnings or voluntariness
of his confession in light of his testimony that he never made a
confession!").
Third, the confession testimony was strongly corroborated by
other evidence presented at trial, including the testimony of
three other participants in the smuggling scheme and an
undercover agent. The confession testimony was cumulative of
other evidence on which a reasonable jury easily could have
8
convicted Iwegbu. Iwegbu's defense -- that he was set up by Pam
Jones because he ended their affair -- was directly contradicted
by Jones, who denied the existence of the affair. Iwegbu's trial
testimony regarding the seized cash was also contradicted by
several witnesses.
Fourth, in the context of the whole district court
proceeding, the issue of voluntariness was downplayed to the
point that it was a minor issue. This issue was never raised by
either side prior to trial, during opening or closing statements,
or during the charge conference. Iwegbu concedes that the
district court had no way of knowing that there was even an issue
of voluntariness until Iwegbu testified. Counsel for Iwegbu made
no mention of Stover's confession testimony during his closing
argument. Cf. United States v. Fuentes, 563 F.2d 527, 535 (2d
Cir.) (finding issue of voluntariness not raised, in part because
issue was not mentioned in defense counsel's opening and closing
arguments), cert. denied, 98 S. Ct. 491 (1977).
We conclude that Iwegbu has not met his burden of showing
prejudice.
AFFIRMED.
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