U.S. v. Rivas-Macias

• Decision Date: 25 August 2008
• Docket Number: No. 06-2274.,06-2274.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Fernando RIVAS-MACIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

537 F.3d 1271 UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Fernando RIVAS-MACIAS, Defendant-Appellant. No. 06-2274. United States Court of Appeals, Tenth Circuit. August 25, 2008.

[537 F.3d 1273]

Mark T. Baker (Little V. West with him on the briefs), Long, Pound & Komer, P.A., Santa Fe, NM, for Appellant.

Terri J. Abernathy, Assistant United States Attorney (Larry Gomez, United States Attorney, with her on the briefs), Las Cruces, NM, for Appellee.

Before HENRY, Chief Judge, BALDOCK, and TYMKOVICH, Circuit Judges.

[537 F.3d 1274]

BALDOCK, Circuit Judge.

A grand jury charged Defendant Jose Fernando Rivas-Macias with: (1) conspiracy to possess, with the intent to distribute, five hundred grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846; and (2) possessing, with the intent to distribute, five hundred grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). After a two-day trial, a petit jury convicted Defendant on both counts. Defendant raises two points of error on appeal.

First, Defendant argues the district court infringed his right to present a defense when it erroneously concluded that one of Defendant's coconspirators, Alvaro Jimarez, retained his Fifth Amendment privilege against self-incrimination. Jimarez pled guilty shortly before Defendant's trial. Subsequently, at the time of Defendant's trial, Jimarez's sentencing had not yet occurred. Jimarez had, however, debriefed the government on several occasions, in an attempt to qualify for a sentence below the mandatory, statutory minimum under 18 U.S.C. § 3553(f). Defendant contends that by pleading guilty, and giving these unsworn statements, Jimarez waived his Fifth Amendment privilege. Consequently, Defendant claims the district court's refusal to compel Jimarez to testify at his trial was in error.

Second, Defendant Rivas-Macias raises an alternative argument, suggesting the district court erred in failing, sua sponte, to continue his trial until after Jimarez's sentencing. At that point, Defendant suggests, Jimarez's Fifth Amendment privilege would no longer apply. Our jurisdiction over this appeal arises under 28 U.S.C. § 1291. Finding no merit to Defendant's points of error, we affirm.

I.

United States Border Patrol agents took Defendant Rivas-Macias, and a group of four other adults, into custody on an isolated roadway near Hatch, New Mexico. The suspects were traveling in two vehicles: a maroon Taurus and a gold Accord. Defendant Rivas-Macias was seated in the backseat of the Accord. Alvaro Jimarez, the driver of the Accord, and his cousin occupied the front of the car. Traveling in the Taurus were Sergio Serra, the driver, along with his wife and two small children. Both drivers consented to a canine inspection of their respective vehicles. A canine alerted underneath the rear of the Taurus. Subsequently, a border patrol agent discovered an "after-market compartment" in that location, which had recently been covered in black spray paint. Thereafter, agents transported both vehicles, and their passengers, to a border patrol checkpoint for further investigation.

Inside the compartment, which was rigged with an electronic opening device, agents found seven bundles of cocaine wrapped in various substances. A canine inspection of the Honda resulted in the discovery of a similar compartment. Although the compartment in the Honda was empty, agents noted that it was lined with aluminum tape, which drug smugglers often use to insulate spaces in which drugs are stored.¹

II.

A grand jury charged Jimarez, Defendant Rivas-Macias, and Serra with possessing cocaine, with the intent to distribute, and conspiracy to possess cocaine, with the intent to distribute. Jimarez initially pled not guilty, but later entered an unconditional guilty plea. Serra entered

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into a plea agreement with the Government. Defendant Rivas-Macias pled not guilty and proceeded to trial.

Serra served as the Government's primary witness against Defendant Rivas-Macias at trial. Serra testified that he asked Jimarez if Jimarez knew how Serra could make some money. Jimarez put Serra into contact with a man named Carlos. Serra subsequently made at least two trips to Denver for Carlos, once to transport cocaine and once to pick up a shipment of money that never materialized. During Serra's first drug run to Denver, Defendant Rivas-Macias followed him in a separate vehicle. Defendant then led Serra to an apartment complex where he delivered the cocaine.

Serra testified that Defendant Rivas-Macias was again present when Carlos gave him the maroon Taurus, which Serra was driving when border patrol agents took him into custody. According to Serra, the conspirators planned for Serra to switch vehicles with Jimarez and Defendant near Hatch, New Mexico. Jimarez and Defendant Rivas-Macias would then take the Taurus — laden with cocaine — to Denver, while Serra and his family took the Honda on a legitimate business trip elsewhere. According to Serra, after authorities took Defendant Rivas-Macias and Serra into custody, Defendant warned Serra not to rat him out.

In order to rebut Serra's testimony, Defendant Rivas-Macias took the stand in his own defense. Defendant stated that he met Jimarez at a party. On the night in question, Defendant explained that he believed he was traveling to Albuquerque, with Jimarez, to inquire about a construction job. Defendant disclaimed any knowledge of a man named Carlos and denied telling Serra not to incriminate him.

Faced with this conflicting testimony, the jury had to determine whether Serra or Defendant Rivas-Macias was the more credible witness. Based on the content of Jimarez's debriefing statements, Defendant's trial counsel had reason to believe that Jimarez's version of events differed significantly from Serra's.² Consequently, Defendant's trial counsel planned to use Jimarez's testimony to impeach Serra. Jimarez was, in fact, on the Government's witness list. Before the Government called Jimarez to the stand, however, his attorney notified the district court that Jimarez would invoke his Fifth Amendment privilege against self-incrimination, if called to the stand. Faced with precedent stating that a party may not call a witness to the stand merely to compel him to invoke his Fifth Amendment privilege in front of the jury, the district court decided to examine Jimarez outside of the jury's presence.³ But Defendant's trial counsel declined this course of action, indicating to the court: (1) the parties had agreed not to put Jimarez on the stand and (2) the Government planned to release Jimarez from its subpoena.⁴ Subsequently,

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the district court did not examine Jimarez concerning his invocation of the Fifth Amendment privilege.⁵ Ultimately, neither party called Jimarez to the stand and the petit jury convicted Defendant Rivas-Macias on all counts.

III.

We first consider Defendant's assertion that the district court erred in upholding Jimarez's right to invoke his Fifth Amendment privilege against self-incrimination, thus infringing upon Defendant's constitutional right to present a defense.⁶ Our review of matters of constitutional law is de novo. See United States v. Dowlin, 408 F.3d 647, 659 (10th Cir.2005). Thus, we must take a "fresh, independent" look at the question at bar. Timmons v. White, 314 F.3d 1229, 1234 (10th Cir.2003).

A.

At the heart of this case lies two important constitutional values: (1) a witness' privilege not to incriminate himself, and (2) a defendant's right to establish a defense.⁷ The former is grounded in the Fifth Amendment, which states that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."⁸

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U.S. Const. amend. V. The latter is predicated on the Sixth Amendment's confrontation and compulsory process clauses, as well as the Fifth Amendment's guarantee of due process. See United States v. Markey, 393 F.3d 1132, 1135 (10th Cir.2004). Here, we are faced with the tension that arises when these two pillars of our criminal justice system collide.

On the one hand, an individual's privilege against self-incrimination, rooted in our society's "traditional respect for the individual," Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975), serves to ensure the continued vitality of our accusatorial system of justice. See Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976); see also Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (affirming that "ours is an accusatorial and not an inquisitorial system" of justice). The privilege safeguards against the recurrence of the evils associated with the Inquisition and the Star Chamber, see Michigan v. Tucker, 417 U.S. 433, 440, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), by ensuring the Government produces evidence sufficient to convict an individual through the "independent labor of its officers," rather than the "simple cruel expedient of forcing" incriminating information from that individual's own lips.⁹ Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999).

Of course, an individual cannot avoid his duty to testify merely by voicing his own fears of self-incrimination and reciting the Fifth Amendment's familiar terms. See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Castro, 129 F.3d 226, 229 (1st Cir.1997). For the privilege to apply, an individual must face "some authentic danger" of self-incrimination. Castro, 129 F.3d at 229; see also Zicarelli v. N.J. State Comm'n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972) ("It is well established that the privilege protects against real dangers, not remote and speculative possibilities."); Ullmann v. United States, 350 U.S. 422, 439, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (clarifying that the privilege's "sole concern" is with the...