United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 26, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________ Clerk
No. 04-41244
______________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
FRANCISCO CABRERA GARZA
Defendant-Appellant
___________________________________________________
Appeal from the United States District Court for
the Eastern District of Texas, Sherman Division
___________________________________________________
Before JONES, Chief Judge, KING, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
On January 9, 2003, Appellant Francisco Garza was charged in
one count of a multi-count, multi-defendant indictment with
conspiracy to distribute or dispense, or possess with intent to
distribute or dispense 3,4 methylenedioxy-methamphetamine (“MDMA”
or “Ecstasy”), methamphetamine, cocaine, and gamma hydroxybutyrate
(“GHB”) in the Eastern District of Texas. A trial was held from
July 13 - 18, 2003, and Garza was subsequently convicted of the
conspiracy charge. On December 17, 2003, Garza was sentenced to
1
life imprisonment, a $5,000 fine, and five years of supervised
release. Garza filed a motion for new trial, which was granted by
the district court because a portion of the trial transcript was
missing. After a second trial from July 6 - 9, 2004, Garza was
again convicted of the conspiracy. In September 2004, Garza was
sentenced to 360 months imprisonment, a $5,000 fine, and five years
supervised release. Garza filed a timely notice of appeal. We
affirm the conviction but vacate the sentence and remand for
resentencing.
ISSUES ON APPEAL
Garza raises three issues on appeal regarding his trial and
sentencing. First, he claims that the district court abused its
discretion in refusing to allow Michael Grimes, a former
investigator for the United States Department of Justice Inspector
General, to testify or present his report as to his opinion of the
credibility of Dallas Police Officer Barry Ragsdale to whom Garza
allegedly confessed involvement in the conspiracy. The district
court found that Grimes lacked sufficient information to form a
reliable opinion and that his report did not constitute a party
admission. Second, Garza argues that the district court erred in
not allowing him to present the testimony of Linda James, a full-
time document examiner. Garza attempted to introduce Ms. James’
testimony that the signatures of Kim Sanders acting as a witness to
Garza’s alleged confession and consent to search did not match
2
other known signatures of Sanders. Ms. James used copies rather
than original documents in forming her opinion, and did not produce
a report of her findings for the prosecution. The district court
found that Ms. James’ testimony would not be reliable and that
exclusion of her testimony was appropriate under the discovery
rules. Third, Garza argues that his sentence was enhanced
impermissibly by the district judge based on facts not found by a
jury beyond a reasonable doubt. According to Garza, because he
committed his crime prior to Booker, he should be sentenced only
according to the merits opinion and not the remedy portion of
Booker.
DISCUSSION
I. Opinion Evidence Regarding the Truth of a Government Witness
A. Michael Grimes’ opinion testimony
The defense sought to introduce the testimony of Michael
Grimes regarding his opinion of Officer Ragsdale’s veracity in
federal prosecutions, pursuant to Federal Rule of Evidence 608(a).1
In 1998, Michael Grimes, then an investigator for the United States
Department of Justice Inspector General, investigated Officer
1
Fed.R.Evid. 608(a) states: “The credibility of a witness may
be attacked or supported by evidence in the form of opinion or
reputation, but subject to these limitations: (1) the evidence may
refer only to character for truthfulness or untruthfulness, and (2)
evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by
opinion of reputation evidence or otherwise.”
3
Ragsdale. The investigation was prompted by Assistant United
States Attorney Colleen Murphy expressing concern over her belief
that Officer Ragsdale made representations to her that a certain
defendant had cooperated when, in fact, he had not done so.2
During his investigation, Grimes interviewed several witnesses
(defense attorneys, police officers, and prosecutors) regarding
their impression of Ragsdale. Grimes also had a couple of
conversations with Ragsdale, which led Grimes to believe that
Ragsdale was not being truthful because of his hand and eye
movements, and because Ragsdale was being too nice to Grimes.
After the investigation, which lasted about two moths, Grimes
formed the opinion that Ragsdale was deceptive. However, Grimes
recommended that no prosecution be filed based on insufficient
evidence. The district court would not permit Grimes to testify as
to his opinion.
Questions concerning the admissibility of evidence are
reviewed for an abuse of discretion.3 Rule 608 allows witnesses to
present their opinion regarding an individual’s character for
truthfulness and imposes no prerequisite conditioned upon long
2
The defendant referred to here is not connected to the instant
case.
3
United States v. Hicks, 389 F.3d 514, 522 (5th Cir. 2004).
If the Court finds an abuse of discretion, it considers any error
under the harmless error doctrine, affirming the judgment unless
the ruling affected a substantial right of the complaining party.
Hicks, 389 F.3d at 524.
4
acquaintance. However, this Court held in US v. Dotson that Rule
608 does not “abandon all limits on the reliability and relevance
of opinion evidence.”4 Rather, if the court finds the witness
lacks sufficient information to have formed a reliable opinion, the
judge can exclude relying on Rules 403 and 602.”5 Further, the
Court also stated that the opinion witness’ testimony must comply
with Rule 701, which provides, “If the witness is not testifying as
an expert, his testimony in the form of opinions of inferences is
limited to those opinions or inferences which are (a) rationally
based on the perception of the witnesses and (b) helpful to a clear
understanding of [...] the determination of a fact in issue.”6
Therefore, the Dotson Court concluded that “[a]n opinion, or indeed
any form of testimony, without the underlying facts, may be
excluded if it amounts to no more than a conclusory observation.”7
In deciding whether to allow Grimes’ testimony, the district
court carefully considered whether the testimony would satisfy the
requirements of Rule 608. The record indicates that the district
court repeatedly stated that it would allow such opinion testimony
if a proper foundation was laid. In order to adequately decide the
4
799 F.2d 189, 192 (5th Cir. 1986).
5
Id., citing, 3 Weinstein’s Evidence §608[04], 608-20 (1985).
6
Id.
7
Id. at 192-3, citing, United States v. Phillips, 600 F.2d 535,
538-39 (5th Cir. 1979).
5
issue, the district court allowed Grimes to take the stand and be
questioned by both sides out of the hearing of the jury. Following
the direct examination, cross-examination, and re-direct of Mr.
Grimes, the district court analyzed the present case in light of
Dotson. The district court admitted that Grimes had gone further
in his investigation than did the agents in Dotson whose testimony
was excluded.8 However, the district court also felt that Grimes’
investigation had not gone so far as the investigation of the agent
whose testimony was allowed in Dotson.9 Ultimately, the district
court found it to be a close question but concluded that an
adequate foundation had not been laid for Mr. Grimes’ opinion.
The district court did not abuse its discretion in excluding
Grimes’ opinion testimony. In coming to its decision, the district
court applied the correct legal standard and analyzed the case in
light of circuit precedent. As Dotson explains, the determination
of whether a sufficient basis for opinion testimony has been
demonstrated should be made by the trial court “deliberately and in
8
The Court in Dotson excluded the testimony of two FBI agents
who wanted to give their opinions of a witnesses credibility,
because the only basis for the agents’ testimony was that they had
taken part in a criminal investigation of the witness. 799 F.2d at
193.
9
The Dotson Court allowed the opinion testimony of one FBI
agent because he had interviewed the witness four times,
investigated her tax returns and financial information, and studied
her Grand Jury testimony. Id.
6
the exercise of considered discretion.”1 Here, the district court
exercised sound consideration of Grimes’ testimony. Though it was
a close call, the fact that the district court may not have been in
error in admitting the testimony does not mean that the court
abused its discretion in excluding the testimony. In Dotson, this
Court explained that it was not holding that “a government agent’s
opinion of a witness’s character may never be based exclusively on
what the agent learned on an official investigation.”2 However,
the Dotson Court also explained that “the fact that one has
conducted an investigation of the defendant, has known the
defendant, or has had minimal contact with the defendant’s witness
is not a sufficiently reliable basis under Rules 608(a) and 701 for
that witness, over objection, to put before the jury that they are
liars.”3 Therefore, in the absence of a holding that directly
decided whether testimony like Grimes’ must be admitted, the
district court used analogy to decide whether Grimes’ opinion had
a basis making it more than bare assertions. It was not an abuse
of discretion to come to the considered decision that there was not
an adequate foundation for Grimes’ opinion.
B. Michael Grimes’ Investigation Report
Garza also argues that it was error for the district court to
1
799 F.2d at 193.
2
Id.
3
Id. at 194.
7
exclude the report containing Grimes’ opinion as a party admission.
Again, questions concerning the admissibility of evidence are
reviewed for an abuse of discretion.4 According to Garza, the
investigation report qualifies as an admissible party admission
under Federal Rules of Evidence 801(d)(2)(B) and 801(d)(2)(D)
because, when he prepared the report, Grimes was employed by the
Department of Justice, the entity prosecuting Garza. In pertinent
part, Rule 801(d)(2) provides that an admission by a party-opponent
is not hearsay if:
The statement is offered against a party and
is...(B) a statement of which the party has manifested an
adoption or belief in its truth, or...(D) a statement by
the party’s agent or servant concerning a matter within
the scope of the agency or employment, made during the
existence of the relationship.
Garza’s argument that the investigation report is admissible under
Rule 801(d)(2)(B) fails because the prosecution has never
manifested an adoption of belief in the truth of Grimes’ report.
Though it is not as well-settled in this Circuit’s precedent,
Garza should also fail in his argument that the investigation
report is admissible under 801(d)(2)(D). Garza argues that Grimes
prepared his report during the course and scope of his employment
while acting as a government agent. Therefore, according to Garza,
4
Hicks, 389 F.3d at 522.
8
Grimes’ report on Ragsdale is “a statement by the party’s agent or
servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.”
Fed.R.Evid. 801(d)(2)(D). However, other circuits have declined to
extend Rule 801(d)(2)(D) to statements made by government agents,
especially in criminal trials.5
In U.S. v. Van Griffin, the Ninth Circuit explained, “We do
not say that every publication of every branch of government of the
United States can be treated as a party admission by the United
States under Fed.R.Evid. 801(d)(2)(D).”6 In U.S. v. Pravette, the
Seventh Circuit noted that “courts faced with this issue have
refused to apply this provision to government employees testifying
in criminal trials based on the rationale that no individual can
bind the sovereign.”7 In this case, Grimes’ investigation related
to a different criminal case. The results of his investigation
5
There are circuits, however, that have held that statements
made by a prosecutor, rather than some other government employee,
are admissible against the Government as a party admission under
801(d)(2)(D) because prosecutors have the power to bind the
sovereign. See, e.g., United States v. Salerno, 937 F.2d 797, 811-
12 (2d Cir. 1991); see also, United States v. DeLoach, 34 F.3d
1001, 1005 (11th Cir 1994).
6
874 F.2d 634, 638 (9th Cir. 1989).
7
16 F.3d 767, 799 n.9 (7th Cir. 1994), citing, United States v.
Kampiles, 609 F.2d 1233, 1245 (7th Cir. 1979) (“Because the agents
of the Government are supposedly disinterested in the outcome of a
trial and are traditionally unable to bind the sovereign, their
statements seem less the product of the adversary process and hence
less appropriately described as admissions of a party.”).
9
were never adopted by the Department of Justice, and no prosecution
was recommended. It hardly seems within the spirit of Rule
801(d)(2)(D) to admit Grimes’ opinion regarding Officer Ragsdale’s
veracity as an admission by the Government. Therefore, the
district court did not abuse its discretion in ruling that Grimes’
report could not be attributed to the Government.
II. Forensic Expert Opinion
Garza argues that the district court abused its discretion in
not allowing forensic document examiner, Linda James, to testify
that the signatures of witness Kim Sanders on Garza’s alleged
confession and consent to search did not match known signatures of
Sanders. At trial, Sanders testified that he witnessed Garza’s
confession and consent. The defense then called Linda James, a
handwriting expert, to testify that Sanders’ signatures on Garza’s
statements were forgeries. The prosecution objected and the
district court allowed the parties to state their positions outside
the hearing of the jury.8 At that time, James was examined by the
defense and the prosecution. She explained that her expert opinion
was based on her examination of six photocopied documents, four of
which were known to have been signed by Sanders, and two documents
with alleged signatures of Sanders that were being questioned. The
8
The prosecution first objected to the relevance of James’
testimony. The district court correctly ruled that James’s
testimony was relevant to whether or not Sanders signed the
statements as a witness. Therefore, relevancy is not an issue
before the Court.
10
questioned documents included Garza’s confession and consent to
search. James concluded that the two questioned documents were
signed by someone other than the signer of the other four
documents.
The prosecution objected that James’ testimony should be
excluded because the defense did not follow the discovery rules by
disclosing the expert and her opinion before trial. Defense
counsel argued that the prosecution never requested such
information. However, the district court rejected the defense’s
argument, finding that the pretrial order clearly provided for
reciprocal discovery. This Circuit has held that “a trial court’s
decision to exclude evidence as a means of enforcing a pretrial
order ‘must not be disturbed’ absent a clear abuse of discretion.”9
In exercising its discretion in considering the imposition of
sanctions for discovery violations, a district court should
consider the following factors: (1) the reasons why the disclosure
was not made; (2) the amount of prejudice to the opposing party;
(3) the feasibility of curing such prejudice with a continuance of
the trial; and (4) any other relevant circumstances.10 “In
fashioning any such sanction, the district court should impose only
that sanction which is the least severe way to effect compliance
9
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990),
citing, Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir. 1971); see
also Fed.R.Civ.P. 16(f).
10
US v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000).
11
with the court’s discovery orders.”11
Defense counsel makes a lot out of the argument that they did
not have to produce an expert report because Ms. James testified
that she did not prepare a report until the day that she walked
into the court to testify. However, it is really of no consequence
whether exclusion of Ms. James’ testimony was too harsh of a
sanction for a pretrial order violation, if there even was a
violation. This is because the district court also based its
opinion on Federal Rule of Evidence 702.12
Out of the hearing of the jury, James admitted that she did
not know how many times the documents had been photocopied, but she
testified that she believed the quality of the copies were clear
enough for her to use them as the basis of her opinion. James
also admitted that she requested original exemplars of Sanders’
signature from defense counsel, but that originals were not
provided. When questioned, James agreed that to look at the
original signatures is the best practice. After considering this,
the district court stated, “I find that her testimony, based on the
11
Id.
12
Fed.R.Evid. 702 provides that: “If scientific, technical, or
other specialized knowledge will assist the tried of fact to
understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.”
12
examination of copies, comparing them, copies, Xerox copies,
without any knowledge about how often they had been copied, whether
that’s a second, third, fourth, fifth, or tenth copy that had been
made, in other words, a copy of a copy, I find that her testimony
would not be reliable under Rule 702.” As a considered
determination applying the correct legal standard, it cannot be
said that the district court’s ruling was an abuse of discretion.
Garza refers to cases that suggest that James’s reliance on
photocopies went to the weight of her opinion, rather than to its
admissibility. However, as the district court points out, in this
case, the expert was not even sure how many times the signatures
had been photocopied. Furthermore, even if the district court was
in error for excluding the expert testimony, such error was
harmless and did not effect Garza’s substantial rights. To offset
any potential prejudice to the defense, the district court allowed
the copies of the signatures to be admitted into evidence so that
the jury could compare the signatures and draw their own
conclusions. This Court has repeatedly held that juries are
capable of comparing signatures to determine authenticity.13
Therefore, Garza was able to impeach Sanders even without the
expert testimony of Ms. James.
III. Remand in Light of U.S. v. Booker
13
See United States v. Ismolia, 100 F.3d 380, 387-88 (5th Cir.
1996); see also United States v. Wylie, 919 F.2d 969, 978 (5th Cir.
1990).
13
Garza argues that due process and ex post facto constitutional
concerns require that a defendant who committed a crime prior to
the Supreme Court’s opinion in United States v. Booker be sentenced
only according to Justice Stevens’ merits opinion and not Justice
Breyer’s remedy opinion.14 Garza was sentenced to 360 months
imprisonment in September 2004. Prior to his sentencing, Garza
objected to the Presentence Report, which called for a sentence
enhancement based upon obstruction of justice and being involved in
a conspiracy involving 500 grams or more of cocaine and 500 grams
or more of methamphetamine. Garza argues that these enhancements
were unconstitutional because he neither admitted to, nor did a
jury find beyond a reasonable doubt, the specific quantity of
drugs, or that he obstructed justice. The Presentence Report
placed Garza in the sentencing range of 360 months to life
imprisonment, and recommended 360 months. However, because Garza
claims that the district court was prohibited from enhancing
Garza’s sentence based upon the above facts, Garza insists that the
appropriate guideline range was 27 - 33 months of imprisonment.
In Booker, Justice Stevens wrote the merits opinion which
concluded that the jury trial requirements of the Sixth Amendment
apply to the federal sentencing guidelines.15 Therefore, Justice
Stevens concluded that “[a]ny fact (other than a prior conviction)
14
543 U.S. 220, 125 S.Ct. 738 (2005).
15
125 S.Ct. at 755.
14
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.”16 Justice Breyer wrote the remedies
portion of the Booker opinion, in which the Court invalidated
provisions of the Sentencing Reform Act that made the federal
sentencing guidelines mandatory.17 The Court concluded that the
sentencing guidelines are now advisory, which cures any Sixth
Amendment problem.18
Garza fails in his argument that, based on due process and ex
post facto concerns, only the merits portion of Booker applies to
his sentence. This Court has already rejected this ex post facto
argument in United States v. Scroggins.19 However, because Garza
objected to his sentence enhancements before the district court,
and those enhancements, based on facts not admitted to by Garza nor
found by a jury beyond a reasonable doubt, were imposed under a
mandatory sentencing scheme, Garza is entitled to have his sentence
vacated and remanded, unless the error was harmless.20 The burden
16
Id. at 756.
17
Id. at 756-769.
18
Id. at 757.
19
411 F.3d 572 (5th Cir. 2005).
20
See United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir.
2005).
15
of proof is on the Government to show that the error was harmless
by proving beyond a reasonable doubt that the error did not
contribute to the sentence received.21 The record reveals that, at
sentencing, when the district judge sentenced Garza to 360 months
imprisonment, he also orally imposed two alternative sentences in
anticipation of Booker. First, the court imposed “a discretionary
alternative sentence the same as that imposed under the guidelines
to become effective if the Supreme Court of the United States
declares the United States Sentencing Guidelines unconstitutional.”
Second, the court imposed “a further discretionary alternative
sentence, the same as that imposed under the guidelines to become
effective if the Supreme Court of the United States declares the
United States Sentencing Commission Guidelines constitutional but
requires all facts used in enhancing the sentence under the
sentencing guidelines to either be admitted – either admitted by
the Defendant of found by the jury beyond a reasonable doubt.”
The district court’s alternative sentences were not included
in the written judgment but were made orally. “[W]hen there is a
conflict between a written sentence and an oral pronouncement, the
oral pronouncement controls.”22 However, if there is “an ambiguity
between the two sentences, the entire record must be examined to
21
Id. at 285.
22
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).
16
determine the district court’s true intent.”23 In the case before
us, there is an ambiguity in the oral pronouncement itself, and we
cannot ascertain the district court’s true intent from an
examination of the record.
Keeping with this Circuit’s precedent, the trigger for the
first alternative sentence - the Guidelines being declared
unconstitutional in their entirety - did not occur. Therefore, the
first alternative sentence did not come into play.24 With regard
to the second alternative sentence, this Circuit has held in recent
cases that similarly worded alternative sentences were ambiguous.25
Similar to those cases, there is nothing in the record to suggest
that the district judge anticipated the remedial holding in Booker,
such that he considered the Guidelines as one factor among others
in determining Garza’s sentence.
Criminal sentences must “reveal with fair certainty the intent
of the court to exclude any serious misapprehensions by those who
must execute them.”26 Therefore, unclear or ambiguous sentences
must be vacated and remanded for clarification in “the interest of
23
Id.
24
See United States v. Story, 439 F.3d 226, 232-33 (5th Cir.
2006); see also United States v. Adair, 436 F.3d 520, 527 (5th Cir.
Jan. 13, 2006) (citing United States v. Walters, 418 F.3d 461 (5th
Cir. 2005)).
25
Id.
26
United States v. Daughtery, 269 U.S. 360, 363 (1926).
17
judicial economy and fairness to all concerned parties.”27 It is
unclear whether the district judge anticipated that the Supreme
Court would take the remedial measure of rendering the Guidelines
advisory rather than completely invalidating them.
CONCLUSION
Garza has not shown an abuse of discretion in any of the
district court’s evidentiary rulings. As such, he is not entitled
to a new trial on that basis. Further, we find that Garza’s
sentence is ambiguous, and we cannot simply remand for imposition
of the second alternative sentence. For the reasons stated above,
Garza’s conviction is AFFIRMED and his sentence is VACATED and
REMANDED for sentencing proceedings consistent with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
27
United States v. Patrick Petroleum Corp., 703 F.2d 94, 98 (5th
Cir. 1982); see also United States v. Walters, 418 F.3d 461 (5th
Cir. 2005)(remanding for resentencing where the court found
ambiguity in the lower court’s alternative sentences); United
States v. Garcia-Ortiz, 310 F.3d 792 (5th Cir. 2002)(“In light of
the ambiguity in the record, the best course is to remand the case
for reconsideration of the sentence.”)
18