IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-2600
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERT MARTINEZ MUSQUIZ and
ROBERT MARTINEZ GATEWOOD,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(February 10, 1995)
Before POLITZ, Chief Judge, and HIGGINBOTHAM and DeMOSS, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Robert Martinez Gatewood and Gilbert Martinez Musquiz appeal
their criminal convictions on cocaine charges, urging that their
conduct was misread--they were not dealing but trying to collect
DEA reward money by turning in drug dealers. The main issue now is
whether the trial court should have allowed the prosecutor to
cross-examine Musquiz about why he failed to offer this explanation
and instead remained silent after he was arrested and before
receiving Miranda warnings. We hold that the questions were
permissible, reject other contentions, and affirm.
I.
In the spring of 1990, Robert Gatewood, a police officer in
Houston, asked retired officer James Montero if he would like to
make money by stealing from drug dealers. Gatewood told Montero
that during a 1988 homicide investigation of some Colombians, he
and another officer had found and shared between $200,000 and
$300,000. Montero replied that he wanted no part in such a scheme.
The Houston Police Department suspended Gatewood in November
1990. Beginning in January 1991, Gatewood repeatedly asked his
friend, Ana Maria Jaramillo, to find out from her imprisoned son
the names of Colombian drug dealers. Gatewood explained that he
and his confederates could steal drugs and money by posing as
police officers, and that the Colombians would be unable to report
their losses to the police.
Undercover DEA agents Frank "Mike" McDaniel and Jerry Garner
arranged a meeting for September 25, 1991, at which a man named
Carlos was to deliver 100 kilograms of cocaine to a man named
Pacho. Carlos was a confidential DEA informant. Mario Jaramillo
was to supply the cocaine to Carlos, and Ana Maria acted as Mario's
agent. McDaniel and Garner told Carlos and Ana Maria about the
meeting, and Ana Maria told Gatewood and Mario. Ana Maria did not
know where the meeting would be, so she told Gatewood to follow
Carlos to the meeting.
On September 25, Carlos and Pacho met at a TGI Friday's
restaurant in Houston. Narcotics task force agents were stationed
outside. Surveillance agents saw Gatewood follow Carlos to the
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restaurant and wait outside in his Pontiac Grand Am while watching
the restaurant. Gatewood spoke on a cellular phone for a while.
Steve Garza, a former Houston police officer, pulled up in a
Chevrolet Caprice next to the Grand Am and spoke with Gatewood.
Then Gilbert Musquiz, Gatewood's cousin, walked up to the Grand Am
and spoke with Garza and Gatewood. The three men drove around the
restaurant for a while and watched it, following Pacho when he
drove off in his Mazda.
Later that same day, McDaniel and Garner went to a Holiday Inn
to arrange for the drug delivery. They spotted Garza's Chevrolet
Caprice at the parking lot and so called off the delivery.
McDaniel told Ana Maria that he had spotted the Caprice at the
Holiday Inn, whereupon Ana Maria called Gatewood to relay this
information. The Caprice then left the lot.
On October 7, McDaniel and Garner introduced Ana Maria to
undercover agent Robert Boudreau, who arranged to deliver cocaine
to her the next day. On October 8, Ana Maria and another man met
Boudreau, and they were arrested. Ana Maria agreed to cooperate
with the authorities. On October 9, Ana Maria called Gatewood and
told him that some Colombians had bought 114 kilograms of cocaine.
She said that they had stashed it in their Chevrolet Suburban truck
with Mississippi plates in the parking lot of the Adam's Mark Hotel
in Houston. Garza and Musquiz soon drove up to the Adam's Mark
Hotel in Garza's Caprice, and Gatewood drove up in his Grand Am.
Gatewood called Ana Maria from his cellular phone several times,
telling her: "We're going to go after it." An undercover agent
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left the hotel, put a suitcase in the Suburban's trunk, drove to a
nearby shopping mall, put the keys inside the truck's gas cap, and
entered a nearby restaurant. Garza, Musquiz, and Gatewood followed
the Suburban to the mall and watched it. Gatewood repeatedly
telephoned Ana Maria, and she told him that the keys had been left
in the ashtray in the past. Musquiz got into Gatewood's Grand Am.
Gatewood and Musquiz pulled up alongside the Suburban. Musquiz was
wearing a police raid jacket and black leather gloves and carrying
a security guard's badge, even though it was a hot day and Musquiz
had never been a police officer or security guard. After almost
two hours of surveillance, Musquiz got out of the Grand Am and
walked around the Suburban, checking the tops of the tires and
pulling on door handles. Agents then arrested Gatewood and
Musquiz. Garza fled but turned himself in one week later.
Officers found a loaded revolver under Gatewood's driver's seat.
A federal jury convicted Garza, Gatewood, and Musquiz of
conspiracy to possess cocaine with intent to distribute. Gatewood
was also convicted of using a communication facility in the course
of committing a drug trafficking offense. All three defendants
argued unsuccessfully that they were just trying to collect DEA
reward money by turning in narcotics dealers. Gatewood and Musquiz
now appeal.
II.
Defense counsel by a motion in limine asked the court to
instruct the prosecutor not to question Musquiz about his silence
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in the interval between arrest and Miranda warnings. The trial
judge denied the motion. Musquiz testified on direct examination
that he was just trying to earn a reward for turning in drug
traffickers. The prosecutor cross-examined Musquiz about his not
offering this explanation when he was arrested.
Musquiz relies on United States v. Henderson, 565 F.2d 900
(5th Cir. 1978). Henderson turned on the balance to be struck
between probative value and prejudice under the rules of evidence.
Henderson, a prisoner, was silent when searched for marijuana.
Miranda warnings came after the search. After Miranda warnings,
Henderson gave his explanation, the same explanation he offered at
trial. The court held it was reversible error to attack
Henderson's explanation by stressing in closing argument his
silence when confronted by officials. Id. at 905-06. The panel
concluded that the comment was highly prejudicial and lacked
significant probative value, since Henderson's silence was
consistent with his explanation at trial. Id. at 905. Concluding
that on these facts the prejudice outweighed the minimal probative
value, the panel reversed Henderson's conviction. Id. at 905-06;
see also United States v. Impson, 531 F.2d 274, 277-78 (5th Cir.
1976). Henderson and Impson, on which it relied, reflect hostility
toward prosecutorial use of a defendant's silence. That hostility
seems to have flourished against the backdrop of an expansive
vision of a defendant's rights under the Fifth Amendment, although
the opinions do not offer that explanation. Whatever the source,
it found expression both in their balancing of prejudice and
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probative value and in the absence of deference given the trial
court's ruling. Laying aside the correctness of the appellate role
they implicitly assume, these decisions yield no ruling or holding
binding on later panels of this court. Rather, they are case
specific and fact bound. We would be consistent with Henderson and
Impson in our holding today even if the legal matrix in which the
balance is to be struck had not changed. It has.
The Supreme Court and other courts of appeals do not, at least
now, share the Henderson panel's unwillingness to give much, if
any, weight to the probative value of a defendant's silence.
Indeed, Henderson and Impson refused to recognize the difference
between silence before a Miranda warning and silence after a
defendant has been told that he may remain silent and his silence
will not be used against him. This worked an extension of
Miranda's bite by giving silence little, if any, probative value
and blurring the distinction between silence before and silence
after a Miranda warning.
Since Henderson, the Supreme Court, using the same framework
of probative value and prejudice, has recognized that "[s]uch
[post-arrest, pre-Miranda] silence is probative." Brecht v.
Abrahamson, 113 S. Ct. 1710, 1716 (1993). It has distinguished
post-warning silence, holding that a Miranda warning that a suspect
need not make a statement makes the use of silence both unfair and
unreliable because the warnings "induce[] silence by implicitly
assuring the defendant that his silence [will] not be used against
him." Fletcher v. Weir, 455 U.S. 603, 606 (1982) (per curiam);
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accord Anderson v. Charles, 447 U.S. 404, 407-08 (1980). Indeed,
the Court has found that pre-Miranda silence can be highly
probative precisely because it implicates no such assurances.
Fletcher, 455 U.S. at 607; Brecht, 113 S. Ct. at 1716; see also
United States v. Butler, 924 F.2d 1124, 1129 (D.C. Cir.) (holding
post-arrest, pre-Miranda silence admissible in federal trial),
cert. denied, 502 U.S. 871 (1991); United States v. Rivera, 944
F.2d 1563, 1568 (11th Cir. 1991) (same, in case where witness made
comments in prosecution's case-in-chief).
We cannot agree then with Musquiz's contention that Henderson
laid down a prophylactic ban on admission of post-arrest, pre-
Miranda silence or that its holding rested on federal supervisory
power. The reality is that Henderson's weighing came at the high
mark of Miranda's reach, a reach later shortened by the developing
Miranda doctrine.
On these facts, a reasonable juror may have supposed that
Musquiz would have explained when confronted by the police if he
was in fact trying to assist the police in catching drug dealers.
The district court acted well within its discretion in allowing the
cross-examination. Given the deference due the trial court ruling,
we cannot conclude that the probative value of Musquiz's silence
was substantially outweighed by the danger of unfair prejudice. We
find no error in the admission of this evidence. In doing so we
announce no broad rule of evidence. The admission of evidence that
a defendant remained silent on arrest and before a Miranda warning
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turns on fact specific weighing by the trial judge. See Fed. R.
Evid. 403.
III.
Gatewood argues that the district court should have excluded
his 1990 statements to James Montero about a plan to steal money
from drug dealers and his 1988 theft during a homicide
investigation. This evidence is relevant to Gatewood's intent,
knowledge, plan, and absence of mistake or accident. See Fed. R.
Evid. 404(b). It negates his claim that he was only trying to
catch drug dealers to earn reward money. Gatewood argues that his
actions in 1988 and statements in 1990 are too remote to shed light
on his intent in 1991. We cannot say that these events are so
remote that the evidence lacks any probative value.
At Musquiz's request, the court gave a limiting instruction
that the proof of the 1988 theft was admissible only against
Gatewood and then only on the issue of intent. Musquiz argues,
however, that the instructions on conspiracy prejudiced him because
they stated that conspiracy "is a kind of 'partnership in crime' in
which each member becomes the agent of every other member." Thus,
he claims, the jury could have used the previous theft against
Musquiz by imputing Gatewood's intent to Musquiz. Musquiz moved
for severance, but the district court denied the motion.
Defendants who are indicted together should generally be tried
together, particularly in conspiracy cases. "[A] district court
should grant a severance under Rule 14 only if there is a serious
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risk that a joint trial would compromise a specific trial right of
one of the defendants . . . ." Zafiro v. United States, 113 S. Ct.
933, 938 (1993). We review for abuse of discretion. Here, the
district court was well within its discretion in relying on
limiting instructions. We presume that jurors follow the law.
Evidence of one defendant's past crimes "does not ordinarily
justify severance," even though it is inadmissible against a
codefendant. United States v. Rocha, 916 F.2d 219, 228 (5th Cir.
1990), cert. denied, 500 U.S. 934 (1991). The prosecutor did not
try to ascribe Gatewood's theft to Musquiz. In light of the
explicit limiting instruction, the claimed link between the
conspiracy instruction and the spillover guilt is too tenuous to
amount to a serious risk of prejudice. There was no abuse of
discretion.
IV.
Gatewood asks this court to reverse his convictions because
voir dire developed the fact that veniremember number seven had
doubts about her ability to be fair and impartial. At the close of
voir dire, Gatewood's attorney said that he would challenge this
member of the venire for cause, but then said: "Tell you what, we
will withdraw the challenge on [number seven]." Gatewood's
attorney then made four other for-cause challenges, and the judge
granted all four. Neither party challenged number seven for cause
or peremptorily, and she became the foreperson of the jury.
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By withdrawing the challenge, Gatewood waived his objection.
Waived errors are entirely unreviewable, unlike forfeited errors,
which are reviewable for plain error. United States v. Calverly,
37 F.3d 160, 162 (5th Cir. 1994) (en banc), petition for cert.
filed, -- U.S.L.W. -- (U.S. January 18, 1995) (No. 94-7792). In
any event, the error was not plain because number seven clarified
her answers and expressed a willingness to follow the law and
instructions.
V.
The district court denied access to FBI records of rewards
paid informants during 1990 and 1991. Defendants urge that this
lack of access frustrated their right to confront the witnesses
against them. Gatewood argues that this refusal impaired his
ability to cross-examine Ana Maria regarding her motives for
testifying. Musquiz argues that it impeded his defense that his
intent in helping Gatewood was to earn a reward.
In the government's case-in-chief, DEA agent McDaniel
testified that the DEA often rewarded informants based on the
number of defendants, the quantity of drugs seized, and the quality
of the case. At the close of the government's case, Musquiz
subpoenaed the DEA records. The court quashed the subpoena pending
further consideration, persuaded that amounts paid in the past were
not relevant but that DEA policy regarding payment of rewards might
be relevant. During Musquiz's case, retired DEA agent Paul Herring
testified that an informant's tip that led to seizure of 114
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kilograms of cocaine would merit a reward of between $10,000 and
$20,000. Musquiz renewed his request for records, and the
government stated that it was willing to stipulate that rewards had
been paid. After reviewing the records in camera, the court denied
the motion because the records were irrelevant and uncontradicted
testimony had already established the size of DEA rewards. Because
the records would have been duplicative and at best tangentially
relevant, the district court did not abuse its discretion.
Gatewood argues that he needed the DEA reports to contradict
Ana Maria's testimony that she had never been a government
informant and to prove her ulterior financial motive for testifying
against Gatewood. Before trial, however, the government gave the
defense an informant payment sheet showing payments it had made to
Ana Maria to reimburse her expenses. McDaniel testified that the
DEA had not paid her a reward but had reimbursed her expenses and
made monthly subsistence payments to her during the investigation.
He also testified that she had not been paid anything for this
case, because there had been no expenses, and that she was still on
the DEA payroll. DEA agent Boudreau testified that the DEA had
paid Ana Maria $67,174.93 for assistance in investigating
Colombians, of which $25,957.46 was subsistence payments and the
rest expense reimbursements. Boudreau also testified that Ana
Maria had received no reward. The district court then denied the
request for the underlying documents and reviewed the records in
camera, satisfying itself that the defense had not been deprived of
any significant information. The prosecutor tendered copies of the
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DEA forms to the defense, who used these forms in cross-examining
Ana Maria. The defense attorneys questioned her at length about
DEA payments, the terms of her plea agreement, and her reasons for
cooperating with the government. In short, Gatewood had enough
information for cross-examination.
VI.
Gatewood makes four challenges to the district court's
application of the Sentencing Guidelines. First, he contests the
application of a two-point sentencing enhancement for use of a gun
during a drug offense under U.S.S.G. § 2D1.1(b)(1). He argues that
because the gun was found under the seat of his car, it was not
involved in this offense. Application Note 3 to that Guideline
states: "The adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense." The district court's factual finding
that the weapon was connected with the offense was not clearly
erroneous.
Second, Gatewood argues that the district court should not
have enhanced his sentence by two levels for his leadership role in
the crime under U.S.S.G. § 3B1.1(c). But it was Gatewood's idea to
steal from drug dealers. Gatewood asked Ana Maria to find
traffickers. Gatewood recruited Garza and Musquiz. Gatewood made
calls to Ana Maria on his cellular phone, finding out the minutiae
about the Suburban and its drug contents. Gatewood told Garza and
Musquiz to come to the Adam's Mark Hotel, and he directed the
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surveillance. Gatewood ordered Musquiz to go examine the Suburban.
Even though the three men planned to split the proceeds equally,
the finding of a leadership role was not clearly erroneous.
Third, Gatewood claims that he deserved a downward departure
under U.S.S.G. § 5K2.0 because the government manipulated drug
quantity, greatly overstating his criminal involvement. We find no
impermissible manipulation. When told of the 114 kilograms of
cocaine, Gatewood rushed to the Adam's Mark Hotel to prepare to
steal it. He argues that he could not have transported or sold
that much cocaine, but he told Ana Maria that he knew someone who
could sell the cocaine for him and could have used the Suburban to
transport the drugs.
Gatewood's final complaint about his sentence is that the
district court mistakenly thought it lacked the authority to depart
downward. The contention is not supported by the record.
VII.
Gatewood's last two arguments are that 1) the evidence was
insufficient to support his convictions for conspiracy to possess
cocaine with intent to distribute and use of a telephone to
facilitate a drug offense, and 2) the evidence was insufficient to
establish probable cause to arrest him, requiring suppression of
his statements and evidence seized from his car. Both arguments
attack Ana Maria's credibility and reassert the claim that Gatewood
was only trying to earn reward money. We find that the evidence of
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the proposition to Montero, the statements to Ana Maria, the
careful and repeated maneuvers by Musquiz, Garza, and Gatewood, and
the many telephone calls to Ana Maria summed to probable cause and
evidence sufficient to sustain the convictions.
AFFIRMED.
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