IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 13, 2008
No. 06-11156 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSVALDO CISNEROS-GUTIERREZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, HIGGINBOTHAM, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury found Osvaldo Cisneros-Gutierrez (Defendant) guilty for his
participation in a drug dealing conspiracy. The district court sentenced
Defendant to 292 months’ imprisonment. The central issue in this appeal is
whether the district court erred by admitting as substantive evidence under
Federal Rule of Evidence 801(d)(1)(A) a redacted version of a witness’s factual
resume from his plea hearing that directly inculpated Defendant. We affirm.
I
Edgardo Gutierrez (Edgardo), Defendant’s brother, lived in DeSoto, Texas.
He came to the attention of the Tarrant County Narcotics Task Force and the
Drug Enforcement Agency (DEA) for his drug dealing. During a stakeout of
No. 06-11156
Edgardo’s home, the Task Force observed Rondy Booth enter and leave the
house. With the help of local law enforcement, the Task Force pulled Booth over
shortly thereafter for a traffic violation, and a search of the car uncovered drugs.
Booth agreed to cooperate with the Task Force, and he told them that Edgardo
was expecting a large methamphetamine shipment from California that night.
The Task Force, with the assistance of the DEA, continued to surveil Edgardo’s
home and obtained a search warrant.
Shortly after midnight, Defendant and his cousin, Rene Cisneros-Gomez,
arrived at Edgardo’s home. They had driven from California. There was no
other foot or vehicle traffic at the house that night. The next morning
Defendant, Edgardo, and Cisneros-Gomez left Edgardo’s house. They were
stopped a short distance away, while the Task Force and DEA executed the
search warrant on Edgardo’s house. Agents discovered several guns, some
$47,000 in cash, and the interior shell of an ice chest containing thirteen pounds
of methamphetamine in Edgardo’s bedroom closet. A fingerprint from Cisneros-
Gomez was found on the ice chest shell; Defendant’s fingerprints were not found
on the cooler or the drugs, but the cooler and drugs had been washed.
Car rental records showed that, in the weeks before his arrest, Defendant
had made at least two other trips from California, renting a car one-way and
dropping it off at a Dallas airport. Phone records indicated frequent contact
between Defendant and Edgardo during Defendant’s drives to Texas.
Defendant was charged in a superseding indictment with one count of
conspiracy to possess with intent to distribute 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A).
During post-arrest interviews with DEA Agent Ric Smith, Edgardo
implicated Defendant in the drug conspiracy. In June 2005, Edgardo pled guilty
to drug conspiracy and possession of a firearm during, and in connection with,
a drug offense. Edgardo signed a factual resume that read in part, “[h]e agrees
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No. 06-11156
that he possessed the methamphetamine found in his master bedroom closet
with the intent to distribute, that the Glock pistol belonged to him, and that his
brother and co-defendant, Osvaldo Cisneros-Gutierrez delivered the
methamphetamine to him from California prior to the execution of the search
warrant on April 27, 2005.” During his plea hearing, Edgardo admitted that the
contents of the factual resume were true. Defendant, who was on pretrial
release, absconded; however, he eventually turned himself in.
The week before Defendant’s trial, Edgardo told the Government that he
did not want to testify and that he was having problems remembering things.
The Government advised the district court and Defendant during a pretrial
conference that Edgardo might be an adverse witness and that the Government
might request leave to examine him by leading questions. Defendant did not
have access to Edgardo during the time leading up to trial.
At trial, the Government first called a number of law enforcement officers
to testify regarding their investigation, and the surveillance and search of
Edgardo’s home. The Government then called Edgardo, initially treating him
as a non-adverse witness. Edgardo exhibited extensive memory problems from
the beginning of his testimony, and the district court allowed the Government
to treat him as an adverse witness and to use leading questions.
Edgardo’s testimony contradicted statements made during his interviews
with Agent Smith. As the Government began to impeach Edgardo, Defendant
requested that the court give the jury a limiting instruction on the use of prior
statements admitted to impeach the witness. Defendant proposed an instruction
that tracked language in the Fifth Circuit Pattern Jury Instruction. The
Government had no objection, and the court gave the jury the requested
instruction. The Government’s questioning turned to Defendant’s participation
in Edgardo’s drug dealing. Edgardo testified that Defendant had not agreed to
bring the methamphetamine from California to him. The Government
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No. 06-11156
impeached Edgardo’s testimony with his prior statements to Agent Smith;
Edgardo generally stated that he could not recall making any of the statements
to Agent Smith, and specifically said that he could not recall telling Agent Smith
that Defendant and his cousin brought the methamphetamine from California.
The Government then focused on Edgardo’s factual resume, which the court
admitted as impeachment evidence. Defendant requested that the court repeat
its limiting instruction on impeachment a number of times during the
Government’s examination of Edgardo, which the court did.
At the end of Edgardo’s testimony, the Government moved to admit
Edgardo’s factual resume as substantive evidence under Rule 801(d)(1)(A).
Defendant objected, and the court sustained his objection, but said that it would
do some research and might revisit its ruling. The Government called Agent
Smith next, and part of his testimony was used to further impeach Edgardo.
The court told Defendant that it had found authority supporting the
Government’s position that the factual resume could be admitted as substantive
evidence. Defendant persisted in his objection that the factual resume was not
admissible as substantive evidence. However, the court overruled his objection,
and allowed a redacted version of the factual resume to be admitted as
substantive evidence. Edgardo was recalled as a witness. After Defendant cross-
examined Edgardo, the Government questioned him about the factual resume
on re-direct. Edgardo specifically denied that Defendant brought the drugs from
California, testifying that the drugs were already at his house when Defendant
arrived for a visit.
The jury found Defendant guilty. The district court found that the
firearms in Edgardo’s closet should be “attributed” to Defendant, leading to a
two-level sentence enhancement. The court sentenced Defendant to 292 months’
imprisonment, a sentence that was ten years longer than Edgardo’s.
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No. 06-11156
II
Defendant alleges numerous errors in the district court’s evidentiary
rulings involving Edgardo. We review these rulings for abuse of discretion, and
review any error under harmless error analysis.1
A
We begin with Defendant’s contention that the district erred by admitting
the redacted version of Edgardo’s factual resume, which stated that Defendant
delivered the methamphetamine , as substantive evidence under Rule 801(d)(1).
Neither party cites to any precedent that is on point.
Rule 801(d)(1)(A) provides that “[a] statement is not hearsay if . . . [t]he
declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is inconsistent with the declarant’s
testimony, and was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition.” Edgardo testified at
Defendant’s trial and was subject to cross-examination.2
We have previously concluded that a witness’s “feigned” memory loss can
be considered inconsistent under the Rule, for “‘the unwilling witness often takes
refuge in a failure to remember.’”3 The breadth and depth of Edgardo’s claimed
memory loss is facially suspect to say the least, and “[t]he district court
reasonably could have concluded that this selective memory loss was more
1
United States v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007), petition for cert. filed, No.
07-8807 (Jan. 10, 2008).
2
The district court first indicated that the factual resume would not be admissible as
substantive evidence, and Defendant did not cross-examine Edgardo. Once the court ruled
that it was admissible as substantive evidence, Edgardo was recalled and Defendant cross-
examined him. After the Government examined Edgardo on re-direct, Defendant examined
Edgardo regarding the factual resume on re-cross.
3
United States v. Bigham, 812 F.2d 943, 947 (5th Cir. 1987) (quoting 3A J. Wigmore,
Evidence § 1043, at 1061 (Chadbourn rev. ed. 1970)).
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No. 06-11156
convenient than actual.”4 Moreover, Edgardo denied that Defendant agreed to
deliver methamphetamine to him during direct examination. While not a per se
repudiation of the factual resume, “we do not read the word ‘inconsistent’ in Rule
801(d)(1)(A) to include only statements diametrically opposed or logically
incompatible.”5 Once the court indicated that the factual resume was
substantively admissible, Defendant objected that Edgardo had not made an
inconsistent statement; Edgardo was recalled as a witness and testified on re-
redirect that the drugs were already at his home. We will not disturb the
district court’s finding of inconsistency on this record.
We are unaware of any decisions of this court, save one unpublished
decision,6 addressing whether plea hearings fall within Rule 801(d)(1)(A)’s
ambit. A number of our sister circuits have determined that plea hearings do.7
We are persuaded by this authority, and join them in so holding.
The difficulty is whether the factual resume constitutes a statement of
Edgardo’s given during the hearing under oath. The Government urges that
Edgardo “adopted” the statement in the factual resume by testifying to its truth
during his plea hearing, and we agree, while mindful that using the term
“adoption” in these circumstances creates some awkwardness.
4
Id.
5
United States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984); see also United States v.
Butterworth, __ F.3d __, 2007 WL 4441117, at *3 (1st Cir. 2007) (same); United States v.
Dennis, 625 F.2d 782, 795 (8th Cir. 1980) (same).
6
See United States v. Nelson, 242 Fed. Appx. 164, 169 (5th Cir. 2007) (unpublished)
(“Accordingly, Edmond’s statement of January 12, 2006 [made during her guilty plea] was
rightly admitted as substantive evidence [under 801(d)(1)(A)], and we find no error.”).
7
See United States v. Meza-Urtado, 351 F.3d 301, 303-04 (7th Cir. 2003); United States
v. Knox, 124 F.3d 1360, 1363-64 (10th Cir. 1997); United States v. Matlock, 109 F.3d 1313,
1319 (8th Cir. 1997); United States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991); see also United
States v. Ricketts, 317 F.3d 540, 544 (6th Cir. 2003) (indicating that plea hearings qualify).
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Although the factual resume was drafted by the Government, Edgardo
inculpated Defendant in interviews with the Government, and the relevant
wording in the resume indicates that it was based on Edgardo’s admissions – the
critical paragraph says that Edgardo cooperated with law enforcement and that
he “agrees” that Defendant delivered the drugs. Prior to the plea hearing,
Edgardo and his lawyer reviewed and signed the resume, and thereby, according
to the resume, “agreed” to its content. At the hearing, Edgardo declined the
opportunity to change or revise the factual resume, and stated that he
understood its contents. Critical for our purposes, Edgardo admitted under oath
that the factual resume was “true and correct in every respect.” This was a
sufficient adoption.8 Put more directly, Edgardo’s testimony at the plea hearing
is a sworn statement that the facts in the factual resume are true; thus, he made
a sworn statement that it is true that he agrees Defendant delivered the drugs.9
This is not, then, a case where the statements to be admitted under Rule
801(d)(1)(A) are only found in the notes, reports, or affidavits prepared by law
enforcement officers, a situation, as Defendant notes, that a number of courts
have held falls outside the Rule.10
While it would have been an easier question if Edgardo had admitted
under oath during the plea hearing that he made the inculpatory statement and
8
See Bell v. United States, 790 A.2d 523, 528-29 (D.C. App. 2002) (finding a witness’s
guilty plea factual statement admissible in similar circumstances and under a hearsay rule
that tracks Federal Rule of Evidence 801(d)); cf. United States v. Davis, 487 F.2d 112, 123 (5th
Cir.1973) (explaining that “if the witness admits the truth of the prior inconsistent statements
then the witness in effect adopts the prior statement as his present testimony”); McIntyre v.
Reynolds Metals Co., 468 F.2d 1092, 1094 (5th Cir. 1972) (explaining that a witness who
admits he made a statement and that it is true adopts the statement); Slade v. United States,
267 F.2d 834, 838-39 (5th Cir. 1959) (same).
9
Cf. United States v. Trevino, 131 F.3d 1140 (5th Cir. 1997).
10
See, e.g., United States v. Lloyd, 10 F.3d 1197, 1217 n.27 (6th Cir. 1993); United
States v. Dietrich, 854 F.2d 1056, 1061-62 (7th Cir. 1988); United States v. Livingston, 661
F.2d 239, 242 (D.C. Cir. 1981). We express no opinion on such a situation.
7
No. 06-11156
that it was true – or to have otherwise testified that Defendant delivered the
drugs – under these circumstances, his failure to do so is not fatal to finding that
he adopted the statement. We need not, and do not, address whether facts in the
factual resume of which Edgardo had no personal knowledge became part of his
testimony at the plea hearing. The district court did not abuse its discretion by
admitting the redacted factual resume as substantive evidence.
B
Defendant argues that the Government’s “primary purpose” in calling
Edgardo was to put otherwise inadmissible evidence before the jury under the
guise of impeachment.
The Government argues that Defendant failed to raise this objection
below, limiting our review to plain error.11 We agree. We have previously
suggested that a defendant must object in these circumstances,12 and at least
two of our sister circuits have required an objection.13 Requiring an objection is
a sound rule, for it affords the district court the opportunity either to avoid the
problem in the first instance by preventing the witness from testifying, or, at the
least, to “ameliorate” any error, for example with jury instructions.14 Defendant
never objected despite indications that Edgardo was a problematic witness for
the Government. The Government admitted pre-trial that Edgardo might be
11
See United States v. Olano, 507 U.S. 725 (1993).
12
See United States v. Hogan, 763 F.2d 697, 701 (5th Cir. 1985) (“While the Hogans’
objections discussed earlier are not paradigms, they clearly were sufficient to bring the issue
to the attention of the trial court and thus preserve this ground for review.”), withdrawn in
part on other grounds, 771 F.2d 82 (5th Cir. 1985).
13
See United States v. Gomez-Gallardo, 915 F.2d 553, 555-56 (9th Cir. 1990) (applying
plain error review where defendant failed to raise this claim in the district court); United States
v. Johnson, 802 F.2d 1459, 1466-67 & n.18 (D.C. Cir. 1986) (explaining that the defendant’s
“failure to object to introduction of the statement as impermissible bootstrapping constituted
a waiver”).
14
See Hogan, 763 F.2d at 702 (explaining that limiting instructions can “ameliorate”
a jury’s confusion between impeachment evidence that is otherwise impermissible hearsay).
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No. 06-11156
adverse, and Edgardo demonstrated extensive “memory problems” from the
beginning of his testimony. Defendant had ample opportunity after the court
declared Edgardo an adverse witness to object. Finally, Defendant’s motion for
judgment of acquittal focused only on the sufficiency of the evidence; it did not
alert the district court to the Government’s alleged improper conduct.15 Because
there was no objection, we need not address the proper timing of an objection.
Under plain error review, we will grant relief only if (1) there was error,
(2) the error was plain or clear, and (3) the error affects the defendant’s
substantial rights.16 Even if it does meet these requirements, we will not
exercise our discretion to grant relief unless the error “‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’”17
Federal Rule of Evidence 607 provides that “[t]he credibility of a witness
may be attacked by any party, including the party calling the witness.” The
Government concedes that it “may not call a witness it knows to be hostile for
the primary purpose of eliciting otherwise inadmissible impeachment testimony,
for such a scheme merely serves as a subterfuge to avoid the hearsay rule.”18
But, the Government continues, that was not its purpose in calling Edgardo.
We note initially that the admission of the redacted factual resume as
substantive evidence saps this argument of much of its force, for the critical
information that Defendant delivered the drugs was properly before the jury as
substantive evidence. In any event, we conclude that there was no error.
15
See United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997) (“[T]he touchstone is
whether the objection was specific enough to allow the trial court to take testimony, receive
argument, or otherwise explore the issue raised.”).
16
Olano, 507 U.S. at 732-34.
17
Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
18
Hogan, 763 F.2d at 702.
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No. 06-11156
Edgardo inculpated Defendant during interviews with law enforcement,
and then under oath in admitting the truth of his factual resume during his plea
hearing. The Government, therefore, initially had a legitimate, well-grounded
expectation that Edgardo would provide important substantive testimony
regarding Defendant’s participation in the conspiracy. Prior to trial, Edgardo
did tell the Government that he did not want to testify and that he was having
trouble remembering things, but there is no indication that he recanted his
earlier statements inculpating Defendant or suggested that he would change his
story if called to testify. While Defendant contends that the Government had
such knowledge, he points to nothing in the record that confirms the accusation.
Defendant offers, in other words, unsubstantiated speculation regarding the
Government’s “primary purpose,” which distinguishes this case from the cases
on which he relies.19
For example, in United States v. Hogan, the witness made statements to
law enforcement implicating the defendants in a drug conspiracy.20 The witness
changed his story before trial, saying the defendants were not involved, and
again recanted at trial during a voir dire examination outside the jury’s
19
See, e.g., United States v. Ince, 21 F.3d 576, 581 (4th Cir. 1994) (“Unlike the classic
‘turncoat’ witness, Neumann certainly had not shocked the Government with her ‘loss of
memory’ at the second trial, as she had made it plain during the first trial that she would not
readily testify to the alleged confession of her friend, Nigel Ince.” (emphasis added)); United
States v. Zackson, 12 F.3d 1178, 1184 (2d Cir. 1993) (“The voir dire of Zackson demonstrated
conclusively that Zackson would offer no testimony probative of the conspiracy.”); Johnson, 802
F.2d at 1467 (“[I]t was entirely inappropriate for the prosecution to call Halmon to the stand
when it well knew that his live testimony, unlike his prior statement, would be favorable to the
defendant.” (emphasis added)); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984)
(“But it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness
that it knew would not give it useful evidence, just so it could introduce hearsay evidence
against the defendant in the hope that the jury would miss the subtle distinction between
impeachment and substantive evidence–or, if it didn’t miss it, would ignore it.” (emphasis
added)); Whitehurst v. Wright, 592 F.2d 834, 839 (5th Cir. 1979) (“Humphrey denied that he
had fired the gun, and Mrs. Whitehurst was aware that he would so testify.” (emphasis added)).
20
Hogan, 763 F.2d at 699.
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No. 06-11156
presence. In its opening statement, the Government told the jury “I anticipate
in fact that [the witness] may testify that he was in Mexico on legitimate
business; that in fact the [defendants] are not guilty . . . . If [the witness] testifies
as I anticipate, we will show his testimony is untruthful.”21 The witness
testified, as expected, that the defendants were not involved, and the
Government introduced the prior inconsistent statements for impeachment. The
defendants were convicted, but we reversed. We explained that “[t]he rule in
this Circuit . . . is that ‘the prosecutor may not use such a statement under the
guise of impeachment for the primary purpose of placing before the jury
substantive evidence which is not otherwise admissible.’”22 However, we
concluded that
[t]his is not a case where the government needed to determine
whether a witness would adhere to his story under oath and subject
to perjury. . . . [The witness] had already testified twice under oath,
and both times he adhered to his account of fabrication. . . . The
government was not entitled to another test of [the witness’s]
sworn testimony. [The government] well knew what [the witness]
would say under oath.23
The circumstances here differ from those in Hogan. It is too slim a reed
to support a finding of an improper purpose on the Government’s part when the
witness has only indicated he does not want to testify and has forgotten things.
These are not uncommon complaints. A witness should be expected to fulfill his
oath and testify truthfully even if it is unpleasant or painful for him. Exclusion
of a witness because of memory problems is generally an inappropriate remedy;
the Rules of Evidence, for example, provide avenues for handling a witness with
21
Id. at 700.
22
Id. at 702 (quoting United States v. Miller, 664 F.2d 94, 97 (5th Cir. 1981)).
23
Id. at 703.
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No. 06-11156
foggy recollections24 and skilled questioning by counsel may, despite what is
forgotten, still lead to probative testimony. In the absence of something in the
record to ground a finding that the Government’s “primary purpose” in calling
Edgardo was to elicit otherwise impermissible evidence through impeachment,
we cannot find plain error.25
C
Defendant contends that, even if the district court properly allowed the
Government to call Edgardo, it erred “by permitting the prosecutor, in the
presence of the jury, to recite to a recalcitrant Government witness a litany of
leading questions which incorporated the entire substance of unsworn, oral
statements inculpating [Defendant].”26
Rule 611(c) allows the use of leading questions on direct examination “as
may be necessary to develop the witness’ testimony.” The rule further provides
that “[w]hen a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party, interrogation may be by leading question.” We
note that given the extent of Edgardo’s memory problems, which reasonably
appears to have been feigned, and Edgardo’s hostility, the district court did not
abuse its discretion in designating Edgardo as an adverse witness and allowing
the Government to examine him by leading questions.27
24
See, e.g., Fed. R. Evid. 612 (allowing the use of “a writing to refresh memory for the
purposes of testifying”).
25
See United States v. Lopez, 271 F.3d 472, 484 n.11 (3d Cir. 2001); Miller, 664 F.2d at
97.
26
Defendant-Appellant’s Brief at 26 (quoting United States v. Shoupe, 548 F.2d 636 (6th
Cir. 1977)).
27
See United States v. Tunnell, 667 F.2d 1182, 1188 (5th Cir. 1982); see also Fed. R.
Evid. 611(c) advisory committee’s note (“The matter clearly falls within the area of control by
the judge over the mode and order of interrogation and presentation and accordingly is phrased
in words of suggestion rather than command.”).
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Turning to the substance of the Government’s questions, Defendant points
to the Sixth Circuit’s decision in United States v. Shoupe, where the court “h[e]ld
that the recitation by the prosecutor of the entire substance of a witness’s
disavowed, unsworn prior statements, which, if credited by the jury, would be
sufficient to sustain a conviction, abridged defendants’ right to a fair trial in
violation of the Due Process Clause of the 5th Amendment.”28 As we understand
his argument, Shoupe is relevant because of the Government’s impeachment of
Edgardo with his prior inconsistent statements inculpating Defendant. The
concern, then, is that “[t]he jury will hear the impeachment evidence, which is
not otherwise admissible and is not substantive proof of guilt, but is likely to be
received as such proof. The defendant thus risks being convicted on the basis of
hearsay evidence that should bear only on a witness’s credibility.”29 Two reasons
counsel against finding error.
First, and significantly, the district court admitted Edgardo’s redacted
factual resume as substantive evidence under Rule 801(d)(1)(A),30 a decision we
find no reversible error in as we have explained. Although the Government
questioned Edgardo about details of his statements to Agent Smith that do not
appear in the factual resume, the factual resume included the critical admission
that Defendant delivered the methamphetamine. The details that do not appear
in the factual resume are collateral to that key fact, and in some instances were
properly before the jury based on other evidence and testimony – any lingering
error in the admission of those details is harmless.
28
548 F.2d at 643.
29
Hogan, 763 F.2d at 702.
30
Cf. United States v. O’Malley, 796 F.2d 891, 899 (7th Cir. 1986) (“[T]he trial court
admitted Elder’s testimony regarding Fishman’s identification of Salerno not as impeachment
evidence under Rule 607 but as independently admissible substantive evidence under Rule
801(d)(1)(C).”).
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No. 06-11156
Second, the district court repeatedly instructed the jury on prior
inconsistent statement impeachment evidence. We have explained that jury
instructions “can ameliorate a jury’s confusion” in this situation,31 and we are
mindful of “[t]he rule that juries are presumed to follow their instructions.”32
Defendant contends that the limiting instructions were flawed, and thus do not
cure any harm. We disagree.
When the Government began impeaching Edgardo, Defendant’s counsel
specifically requested a cautionary instruction, calling it a “limiting instruction”
in the presence of the jury. The court gave the instruction suggested by
Defendant, which tracked part of the Fifth Circuit Pattern Jury Instruction on
impeachment by prior inconsistent statements. The instruction stated:
The government is offering at this time what it contends are earlier
statements that the witness made to Agent Smith. Earlier
statements of a witness are not being admitted in evidence to prove
the content of those statements are true. You may consider the
earlier statements only to determine whether you think they are
consistent or inconsistent with the trial testimony of this witness
and whether they affect the credibility of this witness.
Defendant’s counsel repeatedly requested that the court reiterate or reinforce
the “limiting instruction,” which the court did. Although the court did not repeat
the substance of the instruction each time, instead only stating “you are so
instructed” or that its “limiting instruction” applied, the only instruction the
court can plausibly be understood to be referring to was the limiting instruction.
Moreover, Defendant did not object to the shorthand references to the
instruction that the court used, which necessarily limits our review.
31
Hogan, 763 F.2d at 702; see also United States v. West, 22 F.3d 586, 593 (5th Cir.
1994) (including jury instructions as one factor counseling against finding error in similar
circumstances).
32
Richardson v. Marsh, 481 U.S. 200, 211 (1987).
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In one instance during the Government’s examination of Agent Smith, the
court did instruct the jury that the prior inconsistent statements were being
admitted for “purposes of impeachment.” Defendant’s counsel immediately, and
properly, asked the court to clarify that the statement was “[f]or determining the
credibility of the witness,” which the court did. The jury also received the
limiting instruction in the court’s charge.
Although we “acknowledge[], as have many others, that the legal
distinction between using a statement to destroy credibility and to establish the
stated fact ‘is a fine one for the lay mind to draw,’”33 the combination of the
substantive admission of Edgardo’s factual resume and the court’s limiting
instructions convince us there was no reversible error.
D
Defendant finally argues that the district court abused its discretion by
allowing the Government to impeach Edgardo’s inconsistent statements through
Agent Smith’s testimony. We disagree. Federal Rule of Evidence 613(b) allows
extrinsic evidence of prior inconsistent statements under certain conditions.34
Defendant argues that Agent Smith’s testimony was improper impeachment
because the Government had an improper purpose in calling Edgardo as a
witness. This argument falters, however, at the first step because we reject
Defendant’s contention that the Government had an improper purpose. We also
note that the court repeated its limiting instruction, discussed supra, in full
during Smith’s testimony, and the redacted factual resume was admitted as
33
Slade, 267 F.2d at 839 (quoting Dowell, Inc. v. Jowers, 166 F.2d 214, 219 (5th Cir.
1948)).
34
See Fed. R. Evid. 613(b) (“Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the witness thereon, or
the interests of justice otherwise require.”).
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substantive evidence. Defendant raises no other argument regarding Smith’s
testimony.
III
Defendant raises three sentencing arguments. First, he argues that the
district court erred in applying a weapons enhancement. Second, Defendant
contends that the district court improperly treated the Guidelines range as
presumptively reasonable. Finally, Defendant challenges the reasonableness of
his sentence, including the presumption of reasonableness this court affords
Guidelines sentences. We find no error.
We review a sentencing decision for “reasonableness,” and as the Supreme
Court has clarified, “[the] explanation of ‘reasonableness’ review in the Booker
opinion made it pellucidly clear that the familiar abuse-of-discretion standard
of review now applies to appellate review of sentencing decisions.”35 This
standard applies “[r]egardless of whether the sentence imposed is inside or
outside the Guidelines range.”36 Gall v. United States bifurcates the process for
reviewing a sentence. Appellate courts
must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence–including an explanation for any
deviation from the Guidelines range.37
Provided that the sentence is procedurally sound, the appellate court then
considers the “substantive reasonableness of the sentence imposed under an
35
Gall v. United States, 128 S. Ct. 586, 594 (2007).
36
Id. at 597.
37
Id.
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No. 06-11156
abuse-of-discretion standard.”38 Neither Gall, Rita v. United States,39 nor
Kimbrough v. United States40 purport to alter our review of the district court’s
construction of the Guidelines or findings of fact. Thus, “[a] district court’s
interpretation or application of the Sentencing Guidelines is reviewed de novo,
and its factual findings . . . are reviewed for clear error. There is no clear error
if the district court’s finding is plausible in light of the record as a whole.”41
A
Section 2d1.1(b)(1) of the Guidelines allows for a two-level sentence
enhancement “[i]f a dangerous weapon (including a firearm) was possessed”
during certain drug offenses.
The Government must prove, by a preponderance of the evidence, that the
defendant possessed the weapon, and it can do so in two ways:
First, the Government can prove that the defendant personally
possessed the weapon by showing that a temporal and spatial
relation existed between the weapon, the drug trafficking activity,
and the defendant. . . . Alternatively, when another individual
involved in the commission of an offense possessed the weapon, the
Government must show that the defendant could have reasonably
foreseen that possession.42
Defendant contends that the district court applied the wrong standard of proof,
and that the district court failed to make the required finding that he possessed
the firearm.
38
Id.
39
127 S. Ct. 2456 (2007).
40
128 S. Ct. 558 (2007).
41
United States v. Juarez Duarte, __ F.3d __, 2008 WL 54791, at *3 (5th Cir. Jan. 4,
2008) (per curiam) (post-Gall and Kimbrough).
42
United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991).
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No. 06-11156
The district court did not apply the wrong standard of proof. The court
specifically stated that its “factual findings are based upon a preponderance of
the evidence.” The court did reference the Guideline’s commentary, noting that
“unless it’s clearly improbable that the weapon was connected to the offense that
this adjustment applies,” and that “[t]he evidence, in the Court’s view, actually
shows that it is clearly probable that the weapons were connected . . . with the
offense.” This discussion, however, was not in reference to Defendant’s
possession of the firearm, but rather addressed the separate question of whether
the firearm was connected to the drug offense.
Nor did the district court fail to make the required finding of possession.
During the sentencing hearing, the court twice stated that for the “reasons
stated in the presentence report and the addendum,” the firearms in Edgardo’s
bedroom closet were “attributable” to Defendant. The presentence report stated
that Edgardo’s possession of the firearms was “reasonably foreseeable” to
Defendant, and that conclusion was not based on the weapon enhancement
commentary, but rather on § 1B1.3(a)(1) of the Guidelines. That is, the
presentence report did not conflate the possession and connection with the
offense issues. In her addendum, the probation officer reiterated that the
weapons were connected to the offense and that Edgardo’s possession of the
weapons was “reasonably foreseeable” to Defendant. The court’s express
reliance on the presentence report and addendum constitute a finding that
Edgardo’s possession of the firearms was “reasonably foreseeable” to
Defendant.43 This case differs from those relied on by Defendant where there
was no indication that the sentencing court had found that the defendant
43
See, e.g., United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994) (explaining that
“we have allowed the district court to make implicit findings by adopting the PSR” so long as
“the findings in the PSR are so clear that the reviewing court is not left to ‘second-guess’ the
basis for the sentencing decision”).
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No. 06-11156
“possessed” the weapons.44 The court might have addressed more specifically the
possession issue, but we are not presented with a record that leaves this court
“second-guessing” the basis of the sentencing court’s decision.
Nor can we say that this finding is clearly erroneous. The Government
proved that Edgardo, Defendant’s co-conspirator, knowingly possessed the
firearms, and other facts supporting a “reasonably foreseeable” finding include
Defendant’s relationship with his brother; his extensive participation in the
conspiracy, that is the numerous trips running drugs; his presence during at
least one of Edgardo’s drug deals; and his staying at Edgardo’s home overnight
as well as the time he lived with Edgardo in Dallas.45 The amount of drugs
Defendant delivered and their street value increase the likelihood – and thus
foreseeability – that those involved in the conspiracy will have dangerous
weapons. “It was readily foreseeable that firearms would be employed as tools
of the drug-trafficking trade.”46 The record as a whole adequately supports the
district court’s finding.
B
The Supreme Court has explained that “the sentencing court does not
enjoy the benefit of a legal presumption that the Guidelines sentence should
44
See Hooten, 942 F.2d at 882 (“The district court never addressed the question of who
owned the pistol. Instead of making such a finding, the court only listened to the government’s
response to Hooten’s objection and overruled the objection without explanation.”); United
States v. Aguilera-Zapata, 901 F.2d 1209, 1216 (5th Cir. 1990) (“The district court did not,
expressly or impliedly, find whether or not Aguilera should have reasonably foreseen Martinez’
possession of the revolver.”).
45
See United States v. Thomas, 120 F.3d 564, 574 (5th Cir. 1997).
46
United States v. Garza, 118 F.3d 278, 286 (5th Cir. 1997); see also Aguilar-Zapata,
901 F.2d at 1215 (same).
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No. 06-11156
apply.”47 Rather, the court “must make an individualized assessment based on
the facts presented.”48
The district court complied with the commands of Booker and Rita.
Defendant provided the court with written arguments addressing the sentence,
as well as oral arguments and the testimony of Defendant’s wife and sister. The
court addressed Defendant’s objections to the presentence report, noted that it
had considered the 18 U.S.C. § 3553(a) factors, and briefly explained why it was
unpersuaded by Defendant’s pleas for leniency. The court concluded that
“although I do believe that a sentence at the bottom of the range is appropriate,
this is a case that I believe should be sentenced within the advisory guidelines.”
There is no indication in the district court’s comments that it believed the
Guidelines range presumptively should apply. The court understood that the
Guidelines were advisory, but concluded that the Guidelines provided an
appropriate sentencing range. In short, the district court disagreed with
Defendant over whether the Guidelines sentence was appropriate; that,
however, is a substantive, not procedural, conclusion to which we now turn.
C
We have held that “[w]hen, in its discretion, a court imposes a sentence
falling within a properly calculated guideline range, such a sentence is
presumptively reasonable.”49 Anticipating the Supreme Court’s decision in Rita,
Defendant argued that this presumption violates Booker. The Court, however,
disagreed, and held that the Courts of Appeals can apply such a presumption.50
Defendant’s challenge to the presumption therefore fails.
47
Rita, 127 S. Ct. at 2465; see also Gall, 128 S. Ct. at 596-97 (“[The sentencing court]
may not presume that the Guidelines range is reasonable.”).
48
Gall, 128 S. Ct. at 597.
49
United States v. Medina-Argueta, 454 F.3d 479, 481 (5th Cir. 2006).
50
Rita, 127 S. Ct. at 2462-65.
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No. 06-11156
Defendant fails to marshal arguments sufficient to overcome the
presumption of reasonableness, let alone arguments strong enough for us to hold
that the district court abused its discretion. The district court explained that
Defendant was more than a bit player in the illegal activity, he “was involved in
transporting a significant amount of methamphetamine . . . [and] was integrally
involved in this transaction.” The court also noted that Defendant had fled,
though he did eventually turn himself in.
Defendant’s principal contention is that his sentence is unreasonable
because his brother, who was more deeply involved in the conspiracy, received
a sentence ten years less than his. Defendant and Edgardo are not, however,
similarly situated; in particular, Edgardo pled guilty, provided information to
law enforcement authorities, and did not flee before trial. Defendant also fails
to consider that his microcosmic approach to sentencing disparities, while
relevant,51 would create its own set of disparities with other similarly situated
defendants. We are not unmindful of the Supreme Court’s admonition that
“[s]ince the District Judge correctly calculated and carefully reviewed the
Guidelines range, he necessarily gave significant weight and consideration to the
need to avoid unwarranted disparities.”52
In essence, Defendant asks us to engage in the substantive second-
guessing of the sentencing court that the Supreme Court just told us we are not
to do. Although we might have imposed a different sentence, “tak[ing] into
account the totality of the circumstances,”53 we cannot say the district court
abused its discretion.
51
See Gall, 128 S. Ct. at 600 (“From these facts, it is perfectly clear that the District
Judge considered the need to avoid unwarranted disparities, but also considered the need to
avoid unwarranted similarities among other co-conspirators who were not similarly situated.”
(emphasis added)).
52
Id. at 599.
53
Id. at 597.
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No. 06-11156
For the foregoing reasons, we AFFIRM.
22