*1 Although test. plain-error judged im to Hammack’s pertained comment related silence mediate (lack knowl of defense of the essence noninvolvement), edge and pass very briefly in only once
mentioned argument, final (in middle ing tran pages five some covers (By com it. emphasized never script) and found Alvarado
parison, Cardenas in a Doyle violation extensive
far more error and harmless to be
closing argument Alva plain error. Cardenas
a fortiori 4.) again find n. We rado, at 574 any there concluding that no basis miscarriage justice grave
likelihood from this comment
having . resulted conclude are unable to
Finally, we com- three effect cumulative matters com- other (or
ments have denied of) such
plained likely result- fair trial have
Hammack particularly miscarriage justice, in a
ed of his strong evidence very light of the
guilt.
Conclusion Ham- find all Carter’s
Because we unavailing ultimately contentions
mack’s error, convictions
establish reversible court imposed by the district
and sentences
are
AFFIRMED. America, STATES
UNITED
Plaintiff-Appellee, Felix Garcia- VELASCO
Julio
Caban, Defendants-Appellants. 90-1461, 90-1462.
Nos. Appeals, Court of
United States Circuit.
Seventh 17, 1991. Oct.
Argued 17, 1992. Jan.
Decided *2 Elden,
Barry Atty., Asst. U.S. Jona- Bunge (argued), than G. Office U.S. Atty., Receiving, Appellate Div., Crim. Chi- Ill., cago, plaintiff-appellee. Julio pro se. Meyer, Chicago,
John A. for defendant- аppellant Felix Garcia-Caban. BAUER, Before Judge, Chief CUDAHY EASTERBROOK, Judges. Circuit lot When into the earlier. Judge. BAUER, Chief briefly, and him in, spoke to drove at the employed he was the time During next to the red parked then Illi- Chicago, Repair Auto Park Wicker lid from released the trunk He Nissan. *3 a secret man with was a nois, Henry Olave re- car, Velasco which after within see, he was to the world all identity. For the red box from cable the booster moved group mechanic; only a select an auto it into Garcia-Caban’s placed and Nissan confi- was also a that he were aware people get did Only then Garcia-Caban trunk. offi- enforcement for law infоrmant dential Velasco, look into and, with his car out of 30, 1988, on the while November cers. On trunk. the to overhear happened he garage, at the job owner, shop's the trunk, between Garcia-Caban a conversation he closed After Velas- Correa, defendant Julio and the auto Freddie off car and drove got into his back was the conversation gist The co. team followed The surveillance lot. repair kilo- two sell Velasco agreed to left Correa he had station where gas to him by the cocaine, third man a which grams search In a men. Lopez, and arrested both to deliver Reyes would of Guillermo name agents рerson, recov- of Garcia-Caban’s Im- afternoon. garage that at the Velasco contain- book beeper an address a and ered informant confidential mediately, Olave In a search number. phone ing Velasco’s the authorities and called action into went a car, they recovered the trunk of As a result conversation. report to gram containing a 992.1 cable box booster placed under surveil- shop repair was auto Later, pure cocaine. package 90% lance. Velasco, and Reyes, agents also arrested of, and advised was Reyes, Garcia-Caban Correa. afternoon enough, later Sure rights, after which waived, his Miranda up at the Nissan, showed red driving a the arrest- Olave, oral, to taped statement briefly gave an with Reyes spoke garage. in detailing his involvement for ing of cocaine officers kilogram telling him had in day’s cable box events. in a booster concealed Velasco andHe arrived. Shortly, Velasco car. nutshell, in his In a Nissan, red over to Reyes walked to a introduced he was said Garcia-Caban door, looked passenger the front opened acquain- mutual “Angel” by a named man to the front inside, and walked then had sever- Angel and Garcia-Caban tance. got into white then garagе. Velasco 30, 1988. meetings November before al stayed at Reyes off. drove and Toronado Angel com- meetings, During of those one garage. he had front- to Garcia-Caban plained team minutes, the surveillance Tony Within to a of cocaine thirty kilograms ed at gas station arrive pay Velasco saw towas Gonzales, Gonzales for which Chicago. and Damen Division Angel corner And $400,000, never but did. him car to a car next parked his Angel Velasco of- find Gonzales. could now men, Felix Garcia- two $10,000 put if he could Garcia-Caban fered All sitting. Lopez, were and Sal Caban Fortuitous- Gonzales. Angel in touch with and walked cars out of their got men thrеe Lopez intro- Sal on November ly, Gar- car. of Garcia-Caban’s front to the aat Tony Gonzales Garcia-Caban duced car, a the hood opened cia-Caban encounter, Gar- During that tavern. local inside. Oldsmobile, all looked white was inter- Gonzales learned cia-Caban got back and Garcia-Caban Velasco Then a half kilos two and purchasing ested gas out of the and drove into their cars ar- they Lopez, made Through cocaine. stayed behind. Lopez station. Gon- to sell Garcia-Caban rangements for day. following Garcia- cocaine ob- zales and Garcia-Caban Velasco Novеmber Angel on contacted minutes, driving Caban next, again within served provide cocaine Angel agreed lot, Repair Ve- Park Auto Wicker
into the An- Gonzales. to sell to Garcia-Caban parked in the lead. car lasco’s go Garcia-Caban gel instructed driven Reyes had red Nissan behind gas Damen, charges against station at Lopez. Reyes, Division where a Angel’s friend of would deliver the cocaine players. and Correa remained told, to him. did as he Garcia-Caban remaining The trial of the defendants (who Angel’s and when friend arrived set for October 1989. Just before Velasco), now know is defendant he did not selection, jury Reyes changed and Cоrrea Instead, him. have the cocaine with pleas guilty. their Trial resumed on friend led Wicker 30, 1989, October with Repair. Park Auto Garcia-Caban then re- and Velasco as defendants. At the trial’s as the counted the events surveillance team conclusion, jury found both defendants had witnessed them. He stated that when *4 guilty February on both counts. On Angel’s looking he and friend were at the judge the district sentenced Velasco placed booster cable box the friend had to a term 292 imprisonment months to car, opened the trunk of his the friend by eight years be followed supervised box and showed Garcia-Caban that it con- release. She sentenced Garсia-Caban on tained a kilo of cocaine. 26, 1990, February prison to a term of 262 Agents asked Garcia-Caban what would months, also to by eight years be followed happened have next Lopez had he and not supervised release. gas Lopez, been arrested at the station. them, told would have delivered the cocaine conviction; appeals Garcia-Caban now his gotten money to Gonzales and for it. appeals Velasco both his conviction and the transaction, For his role in this Garcia- computation of his sentence. As to Gar- Caban claimed he paid would have been cia-Caban, we affirm. As to we only a nominal amount. But that wasn’t part, affirm in in part, reverse and remand up. the- reason he it purpose set His resentencing. for We address each in turn. bring Angel together, and Gonzales an Angel $10,- act for which had offered him I. 22, 1989, February On grand jury re- argues govern- Garcia-Caban turned a two-count against indictment Gar- proffer, ment used his in contravention of cia-Caban, Velasco, Lopez, Reyes, and Cor- agreement, their sought when to intro- charged rea. Count one that the five had portion duce a of his statement conspired possess with the intent to dis- trial, and that the trial court erred when grams tribute 992.1 of a containing mixture admit, it failed to undеr the rule of com- cocaine violation of 21 U.S.C. 846 § pleteness, remaining portions. The re- (1988); charged count two them with distri- sult, contends, is that he was denied his grams
bution of 992.1
of a mixture contain-
process right
due
to a fair trial. He asks
ing cocaine within one thousand feet of an
us to reverse and remand for a new trial.
school,
elementary
in violation of 18 U.S.C.
We decline.
(1988)
2
21
841(a)(1)
and
U.S.C.
and
§
§§
(1988).
845a
Approximately nine months after
ar-
his
A.
rest,
proffer
Garcia-Caban made a
Our
agreements
courts take
be
government
obtaining
after
govern-
government
tween the
and a defendant
that,
promise
except
ment’s
impeach-
for
very seriously.
Indeed, wе insist that the
purposes,
ment
nothing
in the
government scrupulously perform
keep
against
would be used
him in
govern-
any agreement it makes.
proffer,
ment’s case.
United States v.
his
Cir.1984),
Brimberry,
744
story
recanted
F.2d
to the extent
denied,
Lopez,
1039, 107
of the involvement of
rt.
cast
S.Ct.
ce
involvement,
doubt on the
(1987).
even exist-
L.Ed.2d 817
ence,
Angel
of either
or Gonzales. Shortly
government
maintains that the
violated its
thereafter
agreement
dismissed the
not
anything
to use
contained in
attempt
to use
first,
by co-defendant
him twice:
against
proffer1
it,
argue
government would
portion of
the trial
proffer to
revealing the fact
hear-
was inadmissible
that the statement
redacting
post-
sеcond, in
judge,
anyone but the United States.3
say as to
trial.
use at
arrest
counsel, however, asked
Garcia-Caban’s
when,
what,
pivotal
Who said
in under the
statement come
that the entire
claimed violation
analysis of the first
to our
doctrine,
of the Fed-
Rule 106
completeness
Therefore, must ex
agreement.
In order to rule on
of Evidence.
eral Rules
they occurred. After
the events
amine
matter,
judge
parties
asked the
empaneled, but outside
jury had been
transcript of the state-
provide her with a
disposed of
judge
presence,
trial
their
ment,
each
admit-
with the
wanted
housekeeping matters.
preliminary
some
separate
color. Just
highlighted
ted
matters,
govern
by the
raised
of those
One
explained
counsel
after Garcia-Caban’s
ment,
use of
its intended
entire
that he wanted
use
statement' dur
opening
in his
state-
post-arrest statement
agents
testimony of one
who
ing the
following exchange
jury, the
ment to the
Although
specifi
the statement.
took
*5
occurred:
time,
Assistant
the
at that
cally identified
problem is
Judge, the other
[AUSA]:
(“AUSA”)
re
Attorney
was
States
most
that Felix
recanted
post-
part of
ferring to that
gave
I mean
he
after
of this statement.
he
he admitted
statement wherein
arrest
statement,
in
a
we had
conference
the
placed
cable box
the booster
knew
large
and he took
months later
some
The state
contained cocaine.
in
trunk
his
it
back.
AUSA, was not
ment, according to the
that,
offering
you
And are
801(d)(2)(A)
the Fed
hearsay
The Court:
Rule
under
post
the
The AUSA as
Rules of Evidence.
eral
—.
Well, the
the
judge
questions
that
about
counsel]:
the
[Garcia-Caban’s
sured
to,
prosecutor
thing
object
I
only
that
in
and answered
would be asked
statement
that,
a
mentioning
that was
because
Bruton
probl
avoid
way
a
as to
such
that
there
government
issue,
proffer
raising
he
purpose
His
in
ems.2
to me that
promise
a
that,
was
should
was—there
stated,
court
was to alert the
[Velasco], it’s strict-
say exceptiоn
As to
rule.
appeal
not contain
on
does
1.
record
The
any part of it is
ly
think
hearsay, and I don’t
agreement
proffer
of either
substance
Well,
[Gar-
that
as to
for
matter
government.
admissible.
and the
between
accord, however,
as well.
cia-Caban]
that
parties
in
are
The
801(d)(2)(A)—
Under
proffer
agreed
use the
government
not
Well,
are we
case,
what statement
except
im-
against
Court:
its
Garcia-Caban in
The
talking about?
peachment purposes.
Statement
defendant.
[AUSA]:
offering
Who’s
it?
Court:
The
Bruton v. United
In
Well,
offering
part
it.
we’re
[AUSA]:
(1968),
Supreme
Garcia-Caban’s second asserted use
was the introduction of sufficient
by
government
of his
prove
was
its
evidence to
all the elements of the
redaction of his
statement at
crimes with which defendant
charged.
was
trial. He relies on United States v. One of those elements was Garcia-Caban’s
McDaniel,
Cir.1973),
and knowledge
possessed
cocaine.
Pantone,
United
(3d
States v.
cutor offered
The burden
prosecution
on the
to estab
reports,
may
voluminous
which ...
have
lish
independent
an
source for evidence
independent
afforded
proof
an
source
against a
heavy
indeed,
defendant is a
one
evidence adduced at McDaniel’s but we decline to
impossible
make it an
one
trial,
reports
such
nevertheless fail to
adopt
position
bear. We
Mariani,
satisfy
government’s
prov-
burden of
following,
cases
tangen
the mere
ing that the United
Attorney,
States
who tial influence
privileged
information
admittedly read McDaniel’s grand jury may have
prosecutor’s
on the
thought
testimony prior to the indictments, did process in preparing for trial
is not an
not use it in
significant
some
way short
impermissible “use” of that
information.
introducing
tainted evidence. Such United States v. Schwimmer, 924 F.2d
use could conceivably include assistance
-
443,
(2d Cir.),
446
denied,
cert.
U.S.
in focusing the investigation, deciding to -,
55,
116
(1991)
L.Ed.2d 31
prosecution,
initiate
refusing
plea-bar-
(citing Mariani, 851
600).
F.2d at
аlso
See
gain,
interpreting evidence, planning
Rivieccio,
United States
v.
919 F.2d
cross-examination,
gener-
and otherwise
-
(2d Cir.1990),
815
denied,
cert.
U.S.
ally planning
strategy.
trial
-,
111
S.Ct.
1475 refusing to by discretion her not abuse rele be must to admit seeks proponent the it. admit then, Even case. in the thе issues to vant “any that evidence tend- admit if it has need relevant is a trial Evidence evidence that the of fact explains the existence ency or make qualifies to which of v. determination States the consequence United to is of opponent. the offered Cir.1987). probable or less probable (7th the more 1211 action Sweiss, F.2d 814 the evidence.” without it would be relevance than Once conjunctive. is test The consequence of fact 401. A then court established, trial the Fed.R.Evid. been has de- case government’s test, critical the half of the second address must pos- he that knowledge guilty fendant’s (1) it does asking so do should had the prosecution The cocaine. sessed evidence, (2) does admitted explain the mem- team surveillance testimony of the (3) context, in evidence the admitted place and Ve- observed bers who trier misleading the admitting it avoid will after trunk into look lasco admitting it insure (4) fact, will of in box cable placed the booster had of understanding of all impartial fair and that not establish it, that would but alone (citing United 1211-12 Id. evidence. the cocaine. possessed knew Cir.1984), (3d 87, 91 Soures, F.2d 736 v. States portion that offered Thus, the 1161, 105S.Ct. denied, 469 U.S. rt. ce statement of 106 deci (1985)). Rule 927 L.Ed.2d 83 of coke. stated, kilo “The wherein the of discretion sound the to are left sions opened I deleted], material [.Bruton absent disturbed court, not be and will trial there was material deleted] trunk [Bruton v. States discretion. of that abuse trunk.” I locked then there kilos [sic] Cir.1990), 966, 971 Bigelow, nothing at 4. There Statement v. United Vaughn nom. sub denied cert. of defendant’s portions — 1077, 112 U.S. -, Rule under admit he tried statement (1991). L.Ed.2d guilty knowl- the fact make The probable. or less probable edge more appeal, Garcia-Caban on his brief solely with deal portions unadmitted court “[sjpecifically, [trial] states whom, others, with none involvement although the redacted found relevant were exception of relevant, they failed were statement Indeed, men- case.8 government’s not they did 106 because Rule the test or might have confused others those tion of state portions’ admitted ‘explain the contrary in fact jury, which mislead This is at 18-19. Brief Appellant's ment.” qualify, explain, purpose Rule 106’s judge’s precise characterization anot in context. the admitted place her statement do view ruling.7 We those United por unlike are not ruling that the unadmitted facts Our express an (9th Cir. Dorrell, F.2d 427 rele statement States of defendant’s tions post- There, made ruling 1985). as a Rather, her view vant. he confessed on arrest motion based of defendant’s denial political explained his hold, charged and We the acts test. Sweiss prong second committing motivations religious fails both however, evidence *9 pre- trial, was Dorrell At his acts. therefore, did those judge, the that prongs, that, that portion the is anything like judge stated: 7. The the impeach, that essentially you want cited the case Reviewing well as case as that lie, the don’t read I thing was whole although I can under- ... government, the looking you broadly do. And as cases making, you’re argument relevance stand the specific presented in the that were facts portion of second although of the terms —in cited, I think don’t have been subject cases test, explain the that it is position. supports your oppo- on the offered portion or the matter nent, 149, at 104. Tr. offering R. this is con- dealing was with what portion limited discussion, pp. supra at relevancy See our offering any They aren’t the box. tained in or 1472-1473. got it from dealing with who 1476 offering necessity defense,
eluded from
felony
substance was not a
conviction with-
granted
after which the trial court
meaning
pro-
the career offender
government’s motion to redact from
visions,
his
and thus should not have been con-
explanation
statement his
for his conduct.
sidered
the district court. Because the
All that was left was his confession. Hold government has confessed error on this
ing
complete
post-
that the
of Dorrell’s
text
point, we need not аddress it.
simply
We
required
arrest statement
under
reverse and remand to the district court for
106,
Rule
Circuit stated that
Ninth
“re
resentencing.
(In passing,
agree
with
moving
explanation
politi
Dorrell’s
of the
judgment
ap-
religious
cal and
for his
motivations
actions praisal of error in
sentencing.)
Velasco’s
change meaning
portions
did not
argues
the district court
jury.
of his confession
submitted
improperly
also
relied on the New York
The redaction did not alter the fact that conviction at
sentencing.
He claims
committing
admitted
the acts with which he
that convictionwas the result of ineffective
charged.”
Here,
Id. at 435.
defen
counsel,
assistance of
and that the district
argues
dant
portions
that the unadmitted
court
hearing
failed to hold
issue,
on the
were necessary
explain
theory
in violation of
process rights.
his due
Be-
Dorrell,
case.9
portions
But as in
these
cause we remand
resentencing,
the dis-
relevant,
necessary
neither
nor
to ex
trict court can resolve the ineffective as-
plain his statement that he knew there was
sistance issue in
proceeding.
cocaine in his trunk. See also United
Smith,
States v.
F.2d
1336
raises,
Defendant
for the first time
Cir.),
denied,
cert.
107 S.Ct.
appeal,
question
on
of whether the
(1986) (Rule
93 L.Ed.2d
inap
mandatory
sentencing provisions
minimum
plicable
portions
because unadmitted
оf de under which he was sentenced violate due
fendant’s
statement did not ex process. We will address this issue only
plain
through
the facts disclosed
the admit
cursorily. Mandatory minimum sentences
portion).
conclude,
ted
therefore,
We
are not
Chapman
unconstitutional.
the trial
did not abuse her discretion
—
-,
U.S.
portions
disallow the unadmitted
of Gar
1919, 1928-29,
(1991).
We turn now to prin- Julio Velasco. His cipal arguments appeal challenge on III. sentence. The district court relied on two prior convictions, foregoing reasons, one from Illinois For the and one the conviction York, from New sentence Velasco under Felix affirmed. The the career provisions offender of the Sen- conviction of Julio Velasco also is affirmed. tencing Guidelines. He sentence, claims the however, Illinois His is reversed and re- possession conviction for of a controlled manded. theory
9. Defendant’s There, was that his “entire confes- tion of the statement. is, sion is a fabrication. That that on the date of right por- still has introduce up his arrest made [he] a confession in But, order to tions right of his statement. does please appease agents." Tr. at not entitle the defendant to introduce 101. Defendant *10 free to offer evidence to of his explanatory are neither case, support theory subject to im- of nor relevant to those of the state- peachment, but we note there is a prosecution. ment introduced further completeness, limitation Smith, on rule of United States v. cases, applicable Cir.), denied, in all arises when [which] cert. prosecution por- (1986). seeks to introduce a L.Ed.2d 370 PART; REMAND- AND REVERSED IN AFFIRMED Part.
ED in concurring. Judge,'
CUDAHY, Circuit that at only to note separately
I write commented
sentencing real-life “a conduct country is awash our
example of how Colombi- cocaine, distributed
Colombian this unlikely that extremely It ans.” pronounced the sentence affected
remark trial experienced very able
by the inappro- sort Nonetheless, this
judge. Colombi- suggesting
priate comment— coun- notoriety of their
ans, because of more se- punished origin, should be
try of crimes— similar for than others
verely into a number creeping to be
seems is an This court. reach records unnecessary weapon
unworthy — —and use its armory, and prosecutorial condoned. not be
should Plaintiff-Appellant, BEST,
Mary J. AUTOMOBILE MUTUAL FARM
STATE COMPANY, INSURANCE Defendant-Appellee. Listrom, Ei- Sloan, Johnson V. Alan No. 90-3158. Kan., Glassman, Topeka, senbarth, & Sloan Appeals, plaintiff-appellant. for Court United States Circuit. Tenth Doherty E.Mimi L. Beckerman Dale Kan., for City, Kansas Deacy, Deacy & 25, 1991. Nov. defendant-appellee. McWILLIAMS,Circuit EBEL and Before Judge.* ALLEY, District
Judges, and Judge. EBEL, Circuit on this two issues with presented areWe plaintiff entitled (1) whether appeal: humiliation suffering, pain, recover Oklahoma, by designation. sitting ern District Alley, Judge District Wayne E. Honorable *The West- for the District Court States the United