U.S. v. Musquiz, 93-2600

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation45 F.3d 927
Docket NumberNo. 93-2600,93-2600
Parties41 Fed. R. Evid. Serv. 802 UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Martinez MUSQUIZ and Robert Martinez Gatewood, Defendants-Appellants.
Decision Date10 February 1995

Michael Ramsey, George H. Tyson, Jr., Ramsey & Tyson, Houston, TX, for Musquiz.

Kevin M. Schad, Cincinnati, OH, for Gatewood.

Deborah Watson, Crim. Div., Dept. of Justice, Washington, DC, Paula C. Offenhauser, Asst. U.S. Atty., Gaynell G. Jones, U.S. Atty., Houston, TX, for appellee.

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

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 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 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 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 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, --- U.S. ----, ----, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (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, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982) (per curiam); accord Anderson v. Charles, 447 U.S. 404, 407-08, 100 S.Ct. 2180, 2181-82, 65 L.Ed.2d 222 (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, 102 S.Ct. at 1312; Brecht, --- U.S. at ----, 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, 112 S.Ct. 205, 116 L.Ed.2d 164 (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...

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