UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-20752
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ZANABRIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
January 25, 1996
Before POLITZ, Chief Judge, JONES and BENAVIDES, Circuit Judges.
POLITZ, Chief Judge:
Convicted by a jury of possession of cocaine with intent to distribute and of unlawful
importation of cocaine, Miguel Zanabria appeals, contending that the trial court erred in an
evidentiary ruling and in the wording of the final judgment, and that the prosecutor
improperly commented on his pre-arrest silence and on the fact that he did not testify on his
own behalf. For the reasons assigned, we affirm the convictions and sentences but return the
matter to the district court for correction of a clerical error in the judgment.
Background
Zanabria was arrested after nearly three kilos of cocaine were found in his luggage
during a customs search at Houston Intercontinental Airport. Indicted for possession of
cocaine with intent to distribute and unlawful importation,1 Zanabria’s defense was that his
actions were the product of duress. Zanabria’s wife testified that they were in a financial
bind requiring that they borrow money from an unidentified third party and, in response to
threats made against their eight-year-old daughter, Zanabria had engaged in the illegal
activity to raise funds to pay off the debt to that person. Zanabria did not testify.
In rebuttal the government offered evidence of Zanabria’s prior conviction for
possession of cocaine. Zanabria had moved in limine for exclusion of this evidence and the
trial judge indicated a disposition to exclude the evidence under Fed.R.Evid. 404(b) but
admitted the evidence at trial, explaining that his earlier indication to the contrary was
premised on Zanabria affirmatively demonstrating his knowledge of the presence of the
cocaine in his luggage, obviating a need for the government to prove knowledge and intent.
The court gave the jury limiting instructions that the prior conviction could be considered
only in connection with the element of intent.
The jury returned verdicts of guilty on both counts. In its judgment-on-verdict, the
district court inadvertently recited that Zanabria had been convicted of conspiracy to possess
cocaine rather than the correct conviction of possession with intent to distribute cocaine.
Sentenced to imprisonment for a term of 72 months and supervised release for five years,
Zanabria timely appealed.
Analysis
We first address the claimed error in the admission of evidence of the prior cocaine-
related conviction. In considering evidence of other crimes under Rule 404(b), we consider
whether the evidence is relevant to an issue other than character, and whether its probative
1
21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 952(a), and 960(b)(2)(B).
2
value is not outweighed by the risk of undue prejudice.2 We review that decision under the
abuse of discretion standard.3
Zanabria contends that his invocation of his right against self-incrimination and
decision not to testify in support of his duress defense do not justify the admission of
evidence of the prior conviction. As the government correctly notes, Zanabria offered
neither stipulation, admission, nor evidence which would remove the issue of criminal intent
from the government’s burden of proof. The government maintains that evidence of the prior
conviction was therefore independently relevant to that issue. We agree.
Zanabria counters that even assuming independent relevance, the evidence involving
an eight-year-old conviction for simple possession of cocaine was too factually and
temporally remote. This argument overlooks the fact that the same drug is involved,
indicating Zanabria’s knowledge of the drug and of people dealing with it. Zanabria’s duress
defense further heightens this relevance.4 We perceive no abuse of discretion in the trial
court’s evidentiary ruling.
We next consider Zanabria’s claim of improper prosecutorial comment when, in
closing argument, the following reference was made to the duress defense:
Now, where do we make the quantum leap to somebody saying that you have
got to do this to avoid that? Where is that? That was promised to you in the
opening statement, but it was not -- there was no delivery of that.
Zanabria maintains that when viewed in context, this comment implicitly related to his
2
United States v. Beechum, 582 F.2d 898 (5th Cir.) (en banc), cert. denied, 440 U.S. 920
(1978).
3
United States v. Bentley-Smith, 2 F.3d 1368 (5th Cir. 1993).
4
See United States v. Hooker, 997 F.2d 67 (5th Cir. 1993) (Rule 404(b) evidence
admissible to rebut defense of entrapment); United States v. Hearst, 563 F.2d 1331 (5th
Cir.), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978) (Rule 404(b)
evidence admissible to rebut defense of duress).
3
failure to testify because the evidence of a link between the threats and the offense could
come only from him. There was no timely objection and our review must be for plain error,
i.e., an error which is clear and which affects substantial rights.5
The statement suggests and the record supports the proposition that the prosecutor was
highlighting only Zanabria’s failure to connect his claimed duress to his decision to transport
drugs into the United States. Zanabria would have the court imply too much from this
comment. We are not persuaded that these comments clearly implicate Zanabria’s decision
not to testify and therefore find no error..
Finally, we address Zanabria’s complaint that the prosecutor’s use of his pre-arrest
silence violated his fifth amendment guarantees against self-incrimination. There was no
timely objection and our review of this assigned error must be limited to plain error.6
The arresting customs officer testified that prior to his arrest Zanabria said nothing
about threats against his daughter or that he was in any kind of trouble or needed any help.
In closing argument the prosecutor used this testimony to rebut the duress defense by
underscoring that the alleged threats were never reported to the authorities, either here or in
Colombia where the child was located.
Assuming without deciding that Zanabria’s pre-arrest silence falls within the reach
of “testimonial communications” protected by the fifth amendment, the record makes
manifest that the silence at issue was neither induced by nor a response to any action by a
government agent. The fifth amendment protects against compelled self-incrimination but
does not, as Zanabria suggests, preclude the proper evidentiary use and prosecutorial
5
United States v. Olano, _____ U.S. _____, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993);
United States v. Calverley, 37 F.3d 160 (5th Cir.) (en banc), cert. denied, _____ U.S.
_____, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995).
6
Id.
4
comment about every communication or lack thereof by the defendant which may give rise
to an incriminating inference. We find no error in the use of this evidence or in the
prosecutor’s comments thereon.
We conclude by noting that in its recitation of the crimes of conviction the judgment
is not consistent with the verdict. This error is evident from the record and is conceded by
both parties. We therefore return this matter to the district court for the correction of clerical
error in accordance with Fed.R.Crim.P. 36.
AFFIRMED and returned to the district court for action consistent herewith.
5