U.S. v. Cisneros-Gutierrez

• Citation: 517 F.3d 751
• Decision Date: 13 February 2008
• Docket Number: No. 06-11156.,06-11156.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Osvaldo CISNEROS-GUTIERREZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

517 F.3d 751

UNITED STATES of America, Plaintiff-Appellee, v. Osvaldo CISNEROS-GUTIERREZ, Defendant-Appellant.

No. 06-11156.

United States Court of Appeals, Fifth Circuit.

February 13, 2008.

Suzanna O. Etessam (argued), Dallas, TX, for U.S.

Brenda Grantland (argued), Mill Valley, CA, for Defendant-Appellant.

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

Before JOLLY, HIGGINBOTHAM and ELROD, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury found Osvaldo Cisneros-Gutierrez (Defendant) guilty for his participation in a drug dealing conspiracy. The district court sentenced Defendant to 292 months' imprisonment. The central issue in this appeal is whether the district court erred by admitting as substantive evidence under Federal Rule of Evidence 801(d)(1)(A) a redacted version of a witness's factual resume from his plea hearing that directly inculpated Defendant. We affirm.

I

Edgardo Gutierrez (Edgardo), Defendant's brother, lived in DeSoto, Texas. He came to the attention of the Tarrant County Narcotics Task Force and the Drug Enforcement Agency (DEA) for his drug dealing. During a stakeout of Edgardo's home, the Task Force observed Rondy Booth enter and leave the house. With the help of local law enforcement, the Task Force pulled Booth over shortly thereafter for a traffic violation, and a search of the car uncovered drugs. Booth agreed to cooperate with the Task Force, and he told them that Edgardo was expecting a large methamphetamine shipment from California that night. The Task Force, with the assistance of the DEA, continued to surveil Edgardo's home and obtained a search warrant.

Shortly after midnight, Defendant and his cousin, Rene Cisneros-Gomez, arrived at Edgardo's home. They had driven from California. There was no other foot or vehicle traffic at the house that night. The next morning Defendant, Edgardo, and Cisneros-Gomez left Edgardo's house. They were stopped a short distance away, while the Task Force and DEA executed the search warrant on Edgardo's house. Agents discovered several guns, some $47,000 in cash, and the interior shell of an ice chest containing thirteen pounds of methamphetamine in Edgardo's bedroom closet. A fingerprint from Cisneros-Gomez was found on the ice chest shell; Defendant's fingerprints were not found on the cooler or the drugs, but the cooler and drugs had been washed.

Car rental records showed that, in the weeks before his arrest, Defendant had made at least two other trips from California, renting a car one-way and dropping it off at a Dallas airport. Phone records indicated frequent contact between Defendant and Edgardo during Defendant's drives to Texas.

Defendant was charged in a superseding indictment with one count of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A).

During post-arrest interviews with DEA Agent Ric Smith, Edgardo implicated Defendant in the drug conspiracy. In June 2005, Edgardo pled guilty to drug conspiracy and possession of a firearm during, and in connection with, a drug offense. Edgardo signed a factual resume that read in part, "[h]e agrees that he possessed the methamphetamine found in his master bedroom closet with the intent to distribute, that the Glock pistol belonged to him, and that his brother and co-defendant, Osvaldo Cisneros-Gutierrez delivered the methamphetamine to him from California prior to the execution of the search warrant on April 27, 2005." During his plea hearing, Edgardo admitted that the contents of the factual resume were true. Defendant, who was on pretrial release, absconded; however, he eventually turned himself in.

The week before Defendant's trial, Edgardo told the Government that he did not want to testify and that he was having problems remembering things. The Government advised the district court and Defendant during a pretrial conference that Edgardo might be an adverse witness and that the Government might request leave to examine him by leading questions. Defendant did not have access to Edgardo during the time leading up to trial.

At trial, the Government first called a number of law enforcement officers to testify regarding their investigation, and the surveillance and search of Edgardo's home. The Government then called Edgardo, initially treating him as a non-adverse witness. Edgardo exhibited extensive memory problems from the beginning of his testimony, and the district court allowed the Government to treat him as an adverse witness and to use leading questions.

Edgardo's testimony contradicted statements made during his interviews with Agent Smith. As the Government began to impeach Edgardo, Defendant requested that the court give the jury a limiting instruction on the use of prior statements admitted to impeach the witness. Defendant proposed an instruction that tracked language in the Fifth Circuit Pattern Jury Instruction. The Government had no objection, and the court gave the jury the requested instruction. The Government's questioning turned to Defendant's participation in Edgardo's drug dealing. Edgardo testified that Defendant had not agreed to bring the methamphetamine from California to him. The Government impeached Edgardo's testimony with his prior statements to Agent Smith; Edgardo generally stated that he could not recall making any of the statements to Agent Smith, and specifically said that he could not recall telling Agent Smith that Defendant and his cousin brought the methamphetamine from California. The Government then focused on Edgardo's factual resume, which the court admitted as impeachment evidence. Defendant requested that the court repeat its limiting instruction on impeachment a number of times during the Government's examination of Edgardo, which the court did.

At the end of Edgardo's testimony, the Government moved to admit Edgardo's factual resume as substantive evidence under Rule 801(d)(1)(A). Defendant objected, and the court sustained his objection, but said that it would do some research and might revisit its ruling. The Government called Agent Smith next, and part of his testimony was used to further impeach Edgardo. The court told Defendant that it had found authority supporting the Government's position that the factual resume could be admitted as substantive evidence. Defendant persisted in his objection that the factual resume was not admissible as substantive evidence. However, the court overruled his objection, and allowed a redacted version of the factual resume to be admitted as substantive evidence. Edgardo was recalled as a witness. After Defendant cross-examined Edgardo, the Government questioned him about the factual resume on re-direct. Edgardo specifically denied that Defendant brought the drugs from California, testifying that the drugs were already at his house when Defendant arrived for a visit.

The jury found Defendant guilty. The district court found that the firearms in Edgardo's closet should be "attributed" to Defendant, leading to a two-level sentence enhancement. The court sentenced Defendant to 292 months' imprisonment, a sentence that was ten years longer than Edgardo's.

II

Defendant alleges numerous errors in the district court's evidentiary rulings involving Edgardo. We review these rulings for abuse of discretion, and review any error under harmless error analysis.¹

A

We begin with Defendant's contention that the district erred by admitting the redacted version of Edgardo's factual resume, which stated that Defendant delivered the methamphetamine, as substantive evidence under Rule 801(d)(1). Neither party cites to any precedent that is on point.

Rule 801(d)(1)(A) provides that "[a] statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Edgardo testified at Defendant's trial and was subject to cross-examination.²

We have previously concluded that a witness's "feigned" memory loss can be considered inconsistent under the Rule, for "`the unwilling witness often takes refuge in a failure to remember.'"<sup>3</sup> The breadth and depth of Edgardo's claimed memory loss is facially suspect to say the least, and "[t]he district court reasonably could have concluded that this selective memory loss was more convenient than actual."<sup>4</sup> Moreover, Edgardo denied that Defendant agreed to deliver methamphetamine to him during direct examination. While not a per se repudiation of the factual resume, "we do not read the word `inconsistent' in Rule 801(d)(1)(A) to include only statements diametrically opposed or logically incompatible."⁵ Once the court indicated that the factual resume was substantively admissible, Defendant objected that Edgardo had not made an inconsistent statement; Edgardo was recalled as a witness and testified on re-redirect that the drugs were already at his home. We will not disturb the district court's finding of inconsistency on this record.

We are unaware of any decisions of this court, save one unpublished decision,⁶ addressing whether plea hearings fall within Rule 801(d)(1)(A)'s ambit. A number of our sister circuits have determined that plea hearings do.⁷ We are persuaded by this authority, and join them in so holding.

The difficulty is whether the factual resume constitutes a statement of Edgardo's given during the hearing under oath. The Government urges that Edgardo "adopted" the statement in the factual resume by testifying to its truth during his plea hearing, and we agree, while mindful that using the term "adoption" in these circumstances creates some awkwardness.

Although the factual resume was drafted by the Government, Edgardo inculpated Defendant in interviews with the...