U.S. v. Flores, 91-6248

• Decision Date: 25 February 1993
• Docket Number: No. 91-6248,91-6248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Romeo Trinidad FLORES, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 770

985 F.2d 770

61 USLW 2569

UNITED STATES of America, Plaintiff-Appellee, v. Romeo Trinidad FLORES, Jr., Defendant-Appellant.

No. 91-6248.

United States Court of Appeals Fifth Circuit.

Feb. 25, 1993.

Oscar J. Pena, Jr., Laredo, TX, for defendant-appellant.

Raul Casso, IV, Asst. U.S. Atty., Laredo, TX, Jeffery A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

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

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Romeo Trinidad Flores, Jr. (Flores) appeals his conviction of conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Flores claims, among other things, that his Sixth Amendment rights under the Confrontation Clause were violated by the admission against him of grand jury testimony of his codefendant, Oscar Navarro (Navarro), who did not testify at trial. We agree, and accordingly reverse and remand for another trial.

Facts and Proceedings Below

On May 22, 1990, federal agents established surveillance of a ranch, abutting the United States border on the shores of Falcon Lake near the town of Lopeno, Texas on the suspicion that a large shipment of marihuana would shortly be brought there from Mexico. At approximately 10:00 p.m., agents observed a dump truck travel south on Highway 83, pull off the highway, turn off its lights, and enter the ranch on a caliche road by a livestock dipping bath and a parked Ford Bronco, which had been observed earlier entering the ranch. After voices were heard in conversation, the two vehicles proceeded on the caliche road to the banks of Falcon Lake.

At approximately 4:00 a.m., federal agents observed a red Chevrolet Lumina travelling north on Highway 83 from Lopeno. ¹ The vehicle stopped near the dipping bath and several persons in the car were yelling in Spanish toward that area. A man got out of the passenger side, yelled toward the dipping bath, and reentered the Lumina, which then made a U-turn and returned towards Lopeno. Moments later, the Lumina returned with a person sitting on the passenger-side door frame, yelling toward the dipping bath area. The passenger exited the vehicle and the driver turned around and again drove toward Lopeno. A few minutes later the Lumina returned, picked up the passenger at the ranch gate, and then went back towards Lopeno. About five minutes later, the Lumina again appeared, and, after stopping on the road near the dipping bath, the vehicle's two occupants could be heard conversing about when the truck was due to come out. A Bronco exiting the ranch with its lights off stopped at the ranch entrance and its occupants appeared to speak with the occupants of the Lumina. The Bronco then entered Highway 83, turned on its lights, and drove north towards Zapata. The Lumina entered the ranch with its headlights turned off and travelled in the direction of a dump truck before disappearing. A dump truck later emerged from the caliche road with the Lumina following behind it. The dump truck turned on its lights and headed north from the ranch's entrance onto Highway 83, and was followed by members of the surveillance team. Before following in the dump truck's direction, the Lumina's three occupants exited the car and closed the gate to the ranch. The Lumina was not followed by the agents. About half an hour later, federal agents stopped the dump truck northeast of Zapata, Texas, on Highway 16 and seized 2,768 pounds of marihuana that it was carrying.

The Lumina was not observed again until about thirty minutes later, when a patrolman stopped the car twenty to twenty-five miles north of the ranch, outside of Zapata, Texas, on Highway 16. ² The patrolman observed that Flores was driving the car, a passenger was riding in the front seat, and Navarro was in the back seat. After searching the car, the patrolman directed Flores to follow him back to the Zapata police station to pay some outstanding traffic tickets. Flores did so and then hurriedly left.

About a year later, on April 29, 1991, members of the surveillance team questioned Navarro at his home about his role in the marihuana shipment. Navarro initially refused to talk, but he changed his mind when told he was the target of an investigation. After being given his Miranda warnings, Navarro admitted that he was involved in the shipment. The federal agents then asked him to accompany them to the customs office. He voiced some concerns about his legal status because he was on probation for another offense, but ultimately decided to go with the agents. ³ The agents then drove Navarro to the customs office where he signed a statement concerning the details of the shipment. This confession described Flores as participating in the marihuana conspiracy by engaging in countersurveillance activity along Highway 83 while the marihuana shipment was being loaded. ⁴

On May 3, Navarro testified before a grand jury concerning the marihuana shipment. ⁵ He was without counsel, and was questioned by the Assistant United States Attorney. Of course, neither Flores nor his counsel was present. Navarro's grand jury testimony, echoing his confession in the customs office, incriminated him and also contained inculpatory statements indicating that Flores specifically, among others, was involved in the conspiracy. Based on this testimony, on July 9 Navarro and Flores were charged in a one-count indictment with conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marihuana.

On August 6, the government filed a notice of intent to use Navarro's grand jury testimony pursuant to Fed.R.Crim.P. 12(d). Flores objected, and during a pre-trial hearing on August 12 argued that since he and Navarro were being tried together, and since Navarro had indicated that he would not take the stand and would assert his Fifth Amendment privilege, that therefore the admission of the grand jury testimony would violate Flores' rights under the Sixth Amendment's Confrontation Clause. The district court took this argument under advisement and Flores filed supplemental objections to the grand jury testimony on August 14. He filed further written objections and a motion for severance on August 23. The court summarily denied the motion for severance but allowed Flores to file additional grounds to exclude the grand jury testimony. On August 27, Flores formally identified specific objectionable portions of Navarro's grand jury testimony, and the next day, following an evidentiary hearing, the district court determined that most of the testimony had particularized guarantees of trustworthiness based on the circumstances surrounding the testimony and on the corroborating evidence implicating Flores. ⁶ The district court then redacted certain portions of Navarro's grand jury testimony and, over Flores' objections, allowed the remaining testimony to be admitted against Flores as well as against Navarro. ⁷ Navarro exercised his Fifth Amendment right not to testify at trial.

A jury trial involving codefendants Flores and Navarro began on August 28, and the next day both were convicted of conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). On November 6, 1991, Flores was sentenced to twenty years' imprisonment to be followed by a ten year term of supervised release, and ordered to pay a fine of $7,500. Flores now appeals his conviction asserting that the district court erred in, among other things, admitting Navarro's grand jury testimony. ⁸

Discussion

Flores complains that his Sixth Amendment rights under the Confrontation Clause were violated because of the admission against him of the grand jury testimony of his codefendant Navarro, who exercised his Fifth Amendment right not to testify at trial. ⁹ Flores asserts that Navarro's grand jury testimony did not have the required indicia of trustworthiness. Such indicia must be shown in order to admit a statement under the hearsay exception provided by Fed.R.Evid. 804(b)(3). ¹⁰

The district court reviewed Navarro's testimony to determine its admissibility against Flores under this Court's decision in United States v. Vernor, 902 F.2d 1182 (5th Cir.), cert. denied, 498 U.S. 922, 111 S.Ct. 301, 112 L.Ed.2d 254 (1990). The Vernor court held that in the case of custodial confessions, "[a] close examination of all the circumstances surrounding the making of the statement is required in order to determine whether it so contravenes the declarant's penal interest that a reasonable person in his position would not have made the statement accusing a third person unless he believed it to be true." Id. at 1187-88, quoting Sarmiento-Perez, 633 F.2d at 1102. In addition to reviewing the circumstances surrounding the confession, the district court here relied on independent evidence that placed Flores in the car thirty minutes after it was observed leaving the ranch and thus corroborated that portion of Navarro's grand jury testimony that placed Flores at the scene of the conspiracy. Based on these findings the district court concluded that the testimony had sufficient indicia of reliability to be admitted against Flores as a declaration against penal interest under Fed.R.Evid. 804(b)(3). The district court's analysis was consonant with Vernor, which held that corroborating evidence is to be considered--in addition to the circumstances surrounding the statements--to satisfy the requirement of reliability under rule 804(b)(3) and the requirement of trustworthiness under the Confrontation Clause. Vernor, 902 F.2d at 1188. However, the Supreme Court has since held that corroborating evidence may not be considered in determining whether a statement may be admitted under...