*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- appellant 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 informant 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 person, 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 garage. 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 three 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 November 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 Correa 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 Garcia-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 under 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, we 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- second, 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 exception 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 20 L.Ed.2d 476 S.Ct. offering Court.- Okay. you’re it as And The defendants has when of two Court held that one against particular defen- that an admission implicates his co-de- a confession which made fendant, dant? of the Sixth Clause the Confrontation Yes, Your Honor. [AUSA]: that, trial, any requires at referenc- Amendment offering Court.- Right. it You’re not The be non-testifying co-defendant must es to against [Velasco]? confession. from other’s redacted No, attorney] made [Velasco’s [AUSA]: least, allusion, may want to he some prose- colloquy and the the court between 3. The part statement.... of the introduce on this issue was: cutor anybody stating but that as to What I’m is this, Honor, hearsay Un- my point government, Your statement. But it’s a [AUSA]: hearsay exception part that it going they statement. less can show introduce we’re under, them. not as to know—I’m it’s inadmissible doesn’t falls counsel] [Velasco’s an admis- today, I use it it’s thinking is but We’re because what his know allowed sure just stating party opponent. in I’m reference to that statement sion of a made some had just appearance, and I that. court want earlier an Proceedings (“R.”) Transcript of position, that Record our statement state 30, 1989, ("Tr.”) 801(d)(2)(A) at 2-4. on October as a hear- us under admissible against that wouldn’t be used the defen- persons involved charged two not with Gar- dant. as co-conspirators, cia-Caban Gonzales and Angel, Lopez as well as who at 7. Garcia-Caban claims the charged co-conspirators. The government agreement first its breached government only portion offered exchange mentioning to the trial post-arrest Garcia-Caban’s judge statement that at a some conference months wherein he admitted he was aware later defendant recanted that the most of his state- booster placed cable box ment. in the trunk of his car contained cocaine. Garcia-Caban main- problems There are two with defendant’s tains prosecutor that the was aware First, argument. assuming the AUSA’s proffer he had recanted that statement was a use proffer, it can- that concerned not being be construed as against used Lopez. Based on that knowledge, defen- government’s in the case. It continues, dant redacted his jury’s outside the presence during occurred post-arrest statement for at trial. use legal argument judge to the concerning a government statement the intended to of- again, Once there are two problems with second, fer. But more importantly, argument. The first is his himself, defense counsel unwavering certainty that the AUSA, who informed the trial specifically offered one statement con- Garcia-Caban had made a tained statement because government. All the AUSA said of its knowledge of the contents of his defendant recanted most of his proffer. essence, govern- claims the statement at a conference sometime after *6 sculpted against ment case its him out of a giving his initial Clearly, statement. lump clay comprised of, among other prosecutor equivocated intentionally in or- evidence, both post-arrest his der saying “proffer.” avoid He was proffer. his and disagree. prose- We The successful. His statement only cutor needed post-ar- Garcia-Caban’s capable was interpretations, several only rest statement. And like a sculptor who one of which was gave that defendant discards material unnecessary to the final proffer. Any ambiguity as meaning to his product, prosecutor discarded the irrel- was definitively resolved when defense evancies post-arrest state- counsel said proffer.” “that was a De- ment. fense counsel let the bag, cat out of the prosecutor. product The government final sought

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. 634 F.2d 716 be, was, That could established of Cir.1980), McDaniel, which cites for the fering his admission post- contained proposition that government impermis- arrest statement. The remainder of the sibly shaped its trial strategy and evidence statement was not anything relevant to as a direct result of knowledge prof government prove had to against him: it fer. Recall that the post-arrest statement related to the conduct of others.4 Two of argument During on the issue of whether the there and the kilo was inside the box. That’s admitted, entire statement offered the court be should the AUSA offering. all we’re paring same basis for The wants to story introduce this down post arrest statement: Lopez, Tony, Angel, about Sal canted, which he's re- offering, The that we are Hon- Your view, Honor, our it’s Your or, this, only relates and that is that he anyone really, else’s involvement as the Court box, knew that that coke was in this the box already has jury, instructed the is irrelevant. here, sitting in our cart and that he saw it specifically relating others, Angel, to the crime under in- those Gonzales and vestigation, testimony automatically found, they never Thus, inculpatory if indeed ever existed. was immunized. Unaware that McDaniel's statements about them against testimony immunized, were not relevant to the case Gar the United Attorney handling cia-Caban. Likewise the statement con States the federal inves- cerning Lopez irrelevant, tigation inasmuch as contacted the state authorities and government charges requested copy grand dismissed the of McDaniel's state against jury testimony. authorities, him. That left and Bru- The state also statutory immunity, ton bars mention of statement Garcia- unaware of concerning result, obliged. Attorney Caban made him. As a The United States then testimony. Garcia-Caban's statement was read McDaniel's Less than grand jury pared later, down to evidence relevant three months the federal government's against against case him. That evi returned an indictment McDaniel. dence was his admission that he knew the charges, After his conviction on the federal placed booster cable box in his car trunk appealed, argued McDaniel Although contained cocaine. the remain reading grand jury his immunized state der of Garcia-Caban's state testimony, the federal had used may necessary ment have been to establish impermissibly. theory case, his argued as defense counsel by Kastigar McDaniel was informed judge, to the trial required cannot be to make defendant's (1972), 32 L.Ed.2d 212 wherein the Su- case for him.5 preme Court held that once a defendant provided testimony problem has shown that he in a The second with Garcia- grant argument state criminal matter under a munity, of im- Caban's is his reliance on investigating McDaniel, president federal authorities McDaniel. of a state the same conduct have the burden of show- bank, investigation by was under both fed ing they irregularities obtained their evidence eral and state authorities for against indepen- regarding that defendant from an bank assets. He testified before *7 460, grand jury, making dent source. Id. at 92 S.Ct. at 1664. a state ting seif-incrimina- Such a defendant "need show that he statements. Under a state statute queried, you impeach Now, protected by Bruton, counsel "how can some- Mr. Velasco is so body picture. anyone that hasn't testified?" Id. at 10. he's out of the involvement, And else's misapprehends operation people, they Defense counsel these other even if of Rule 806 of the Federal Rules of Evidence. not, totally pro- exist or ceedings is irrelevant provides, part: That rule in relevant before this Court. And that the-so hearsay statement, objection relevancy grounds When a or a statement our is on for one. 801(d)(2), (C), (D), (E), defined in Rule has 149, Tr. at 98-99. evidence, credibility been admitted in of may attacked, the declarant be and if.attacked appear arguments, It would from defendant's may supported, by any be evidence which court, both before the district court and this that purposes would be admissible for those declarant had testified as a witness. if the cake, too, he wanted to have his eat it and not up have to clean sought the dishes afterwards. He Although quoted language FED.R.EVID.806. to have the entire statement specifically does not include statements defined completeness (see admitted under the rule of 801(d)(2)(A), in the rule under which Garcia- I.B.), claiming infra section its relevance was in, Caban's statement came Rule 806 is not provided theory that it the basis of his inapplicable: "The committee considered it un- 149, pointed case. R. Tr. at 101. The AUSA out necessary to include statements contained in proposed putting that he to do it "without 801(d)(2)(A) (B)-the rule statement stand, doing defendant on the witness and in party-opponent himself or the statement of getting adoption-because that he's the benefit of the statement which he has manifested his recanted, taking back, credibility party-opponent always a defendant has without having opportunity subject credibility [sic]." me the fact that he took that statement back." R. to confront him with to an attack on his JUrncrARy,S.R~p. NOTESOFTHECOMMJTrEEONTHE No. 162, response 1277, Cong., Sess., reprinted Tr. at 8-9. to the AUSA's 93d 2d in 1974 Cong. 7051, "[w]e statement are allowed to use the U.S.Code & Admin.News 7069 n. 28 (emphasis added). proffer impeachment purposes," defense 1474 grant testified under of immunity in or- McDaniel. See United States v. Serra der to shift to the the heavy no, (1st Cir.1989); 870 F.2d 1 United proving burden Cir.1988), that all the evidence it Mariani, v. (2d States 851 F.2d 595 proposes to use was derived legit- from denied, rt. 1011, 109 490 U.S. S.Ct. ce imate, independent sources.” Id. The 1654, 104 (1989); L.Ed.2d 168 and United Eighth Circuit, deciding McDaniel, con- Byrd, v. (11th States 765 1524 F.2d Cir. cluded that though even prose- federal 1985).

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 also 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. 115 L.Ed.2d 1020 McDaniel, (citations omit- (1991); Serrano, 870 F.2d at 17-18. In this ted). case, prosecutor’s independent source We have addressed the holding in of information was defendant’s only twice, McDaniel but neither time statement. It is inconceivable any squarely. See United States Shelton, thing contained defendant’s immunized F.2d Cir.), n. 32 cert. proffer influenced to offer denied sub nom. Bledsoe v. the defendant’s admission at trial. And the 934, 102 S.Ct. 72 L.Ed.2d 454 possibility that the influenced the (1982) (distinguished in that defendant’s prosecutor not to use remaining por statement was immunized “by the opera tions of tion of an provision unusual in the Bank remote, too light of our discussion ruptcy Act that extended immunity to *8 above, and tangential too for us to conclude statements any without showing of self- that the agreement breached his incrimination”); and In the Matter of with the defendant. North Co., American Inv. 559 F.2d (7th Cir.1976) (cited 466 generally for the B. proposition that “courts will not hesitate to dismiss an indictment where prosecu the Defendant Garcia-Caban next as tion fails to meet burden” to show [its] a serts that the trial judge committed revers legitimate independent source). Assuming ible error when she ruled that the introduc for the argument sake of only that the tion of his entire statement was prosecutor used Garcia-Caban’s to not required under Rule 106 of the Federal shape his trial strategy, join we three of Rules of Evidence.6 Our case inter law our sister circuits reject and the reasoning preting Rule requires 106 that the evidence provides: 6. The rule ing or recorded ought statement which in writing When a or recorded statement or fairness to be considered contemporaneously part thereof is by party, introduced a an ad- it. with may verse party require the introduction at Fed.R.Evid. any that time part of other any or other writ-

1475 refusing to by discretion her not abuse rele be must to admit seeks proponent the it. admit then, Even case. in the the 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 address 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 of 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). 114 L.Ed.2d 524 cia-Caban’s statement under Velasco’s remaining challenges to his Rule 106. sentence, conviction, and those to his are , sum, challenges ap- on equally meritless. His conviction is af- peal fail. His conviction affirmed. firmed, but his case remanded to the dis- trict resentencing court for in accordance II. with the above discussion.

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