U.S. v. Mares

• Decision Date: 04 March 2005
• Docket Number: No. 03-21035.,03-21035.
• Citation: 402 F.3d 511
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel Richard MARES, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

402 F.3d 511

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Richard MARES, Jr., Defendant-Appellant.

No. 03-21035.

United States Court of Appeals, Fifth Circuit.

March 4, 2005.

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Katherine L. Haden (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Fed. Pub. Def., Raquel Kathy Wilson, Asst. Fed. Pub. Def., Philip G. Gallagher (argued), Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DAVIS and CLEMENT, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Samuel Richard Mares, Jr., appeals his conviction and sentence for the crime of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We find no merit to any of Mares' arguments challenging his conviction which we affirm.

The principal issue in this appeal is the legality of Mares' sentence following the Supreme Court's decision in Booker/Fanfan. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Mares raised this issue for the first time in his brief filed with us on direct appeal. We agree with the Eleventh Circuit that our review is for plain error. United States v. Rodriguez, 398 F.3d 1291, 1296-97, 2005 WL 272952, at *5-*6 (11th Cir.2005). Because the defendant did not carry his burden of establishing that the error affected the outcome of the proceeding, we find no plain error and affirm the sentence.

I.

Mares' conviction arose from an altercation that occurred outside a Houston neighborhood bar on July 1, 2002. That night, Juan and Daniel Lopez confronted Mares and his friend, Alfredo Martinez, because they suspected Mares and Martinez had attempted to burglarize Juan Lopez's truck. Mares and Martinez were each stabbed during the fight. Several witnesses testified that shots were fired from the PT Cruiser in which Mares and Martinez fled the scene.

At about 1:00 a.m. the next morning, Houston police were summoned to the apartment of Isabel Cervantez, Martinez's girlfriend. There was a blood-stained PT Cruiser in the parking lot, and an ambulance and a fire truck were already on the scene. Paramedics treated Mares and Martinez there and loaded them into separate ambulances. As Mares was being loaded into the ambulance, one of the paramedics noticed something bulky in Mares' pocket. The paramedic removed the object, a magazine clip with twenty-seven rounds of ammunition.

There was some confusion as to the identity of the suspects because one paramedic described the patient he assisted as muscular and stocky with tattoos on his arms. Mares, although muscular and stocky, has a large tattoo on his back but none on his arms. Martinez is much smaller with tattoos on his arms. Some of the paramedics later testified that they had retrieved the magazine clip from the patient with tattoos on his arms. Furthermore, Cervantez testified that she checked Mares' pockets for identification before he left with the paramedics and did not find a magazine clip. She also testified that when Mares left the apartment he was wearing boxer shorts, not pants.

At trial, the defense focused on the issue of identification. Based on this strategy, defense counsel subpoenaed Martinez to testify. Martinez's attorney indicated that Martinez intended to "take the Fifth with respect to any questions." Martinez's attorney indicated that if called to the stand, Martinez would give no information other than his name and address because any other testimony could link him to the incident outside the bar and potentially expose him to criminal liability. Mares' counsel then requested that the court instruct Martinez to take the stand and invoke his privilege question-by-question outside the presence of the jury. The court, however, declined to do so, finding that Martinez had a "legitimate concern that would entitle him to invoke his Fifth Amendment privilege."

In her opening summation, the prosecutor remarked to the jury that Cervantez was not a credible witness and that she had a motive to lie, unlike the paramedic, who had no reason to lie about finding the magazine clip in Mares' pocket. In her rebuttal argument, she warned the jury that the "[d]efense wants you to get lost behind a file of smoke with regard to whether or not there is a tattoo on the person that was transported." She concluded by saying: "ladies and gentlemen of the jury, don't get caught up in the smoke screen. We're here to seek justice. That's the purpose here, to second [sic] justice; and it's no coincidence, it's no mistake." The jury returned a verdict of guilty.

The district court sentenced Mares to 120 months' imprisonment and three years' supervised release. We will discuss the sentence in more detail below.

II.

We address first Mares' challenges to his conviction.

A.

Mares argues first that the district court's refusal to allow Mares' counsel to question Martinez outside the presence of the jury and rule on Martinez's Fifth Amendment objection to each question deprived Mares of his right to present a defense. Martinez's testimony was critical to Mares' defense because Martinez was present during the altercation and when the paramedics transported both men to the hospital. Mares argues that the district court had an obligation to conduct a careful, question-by-question assessment as to whether the Fifth Amendment was properly invoked as to each question, citing United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir.1976).

A district court's decision to exclude a witness's testimony based on an invocation of the witness's Fifth Amendment privilege is reviewed for an abuse of discretion. United States v. Boyett, 923 F.2d 378, 379 (5th Cir.1991). The trial court should inquire into the legitimacy and scope of the privilege to assess the credibility of the witness's fear of self-incrimination before excluding the testimony of that witness. Id. at 380. It should also determine what the boundaries of the privilege are in relation to the testimony sought by the defendant. Id. A witness may be totally excused only if the court determines that "he could legitimately refuse to answer essentially all relevant questions." United States v. Goodwin, 625 F.2d 693, 701 (5th Cir.1980).

In this case, the district court acted within its discretion in determining the scope of Martinez's Fifth Amendment privilege. At trial, the court stated that it was satisfied, based on the evidence already presented in the case, that Martinez had a legitimate basis for invoking his Fifth Amendment privilege to virtually all questions asked of him that would be relevant to Mares' defense.¹ By the time Mares attempted to call Martinez to testify, the Government had already presented substantial evidence of Martinez's involvement in activities that could have led to charges for aggravated robbery, burglary, deadly conduct, and unlawfully carrying a firearm. The evidence up to that point had shown that Martinez had burglarized Lopez's truck and had fired a gun in the direction of Lopez and others at the scene.

Furthermore, it seems clear that, given Mares' defense strategy of disputing the Government's identification of Mares as the person from whom the ammunition clip was recovered, Mares intended to demonstrate through Martinez's testimony that it was Martinez, not Mares, who possessed the magazine clip and that he was the only one who fired shots after the altercation outside the bar. The district court understandably concluded that Martinez invoked his privilege because he had a reasonable apprehension of self-incrimination as a result of his responses to essentially any questions relevant to Mares' defense.

The court was presented with sufficient evidence with which to understand the likely implications of Martinez's testimony and, thus, the scope of his privilege. The district court did not abuse its discretion in upholding Martinez's invocation of his Fifth Amendment privilege.

B.

Mares argues next that certain comments made by the prosecutor in her closing argument amounted to prosecutorial misconduct and reversible error. In the prosecutor's closing argument, focusing on the confusion surrounding the identification of Mares by the paramedics and by the Lopezes, the prosecutor said, regarding Cervantez, a witness for the defense: "[l]adies and gentlemen of the jury, she is not credible, and you can't believe here [sic]. Charles Rizzo [the paramedic] had absolutely no reason to lie to you about finding this on defendant." And later, "She's the one with the motive to lie and not Charles Rizzo and the paramedics who have absolutely no motive." Mares, although he did not object at trial, contends on appeal that these comments amounted to improper bolstering of a Government witness. Mares also points to other comments made by the prosecutor, arguing that the prosecutor improperly impugned the role of defense counsel.

Because Mares failed to make a contemporaneous objection to the prosecutor's closing remarks in the trial court, this court will review any improper remark only for plain error. United States v. Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir.1999). Even with a contemporaneous objection to an allegedly improper remark by the prosecutor, the defendant's burden of establishing that it constitutes reversible error is substantial. United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir.2001). The determinative question in such an inquiry is "whether the prosecutor's remarks cast serious doubt on the correctness of the jury's verdict." Id. In determining whether the remarks constitute reversible error, the court should consider "(1) the magnitude of the prejudicial effect of the prosecutor's remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction." United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir....