U.S. v. Garcia

• Decision Date: 09 November 1990
• Docket Number: No. 90-2050,90-2050
• Citation: 917 F.2d 1370
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abel GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1370

917 F.2d 1370

UNITED STATES of America, Plaintiff-Appellee, v. Abel GARCIA, Defendant-Appellant.

No. 90-2050.

United States Court of Appeals Fifth Circuit.

Nov. 9, 1990.

Rehearing Denied Dec. 14, 1990.

Eduardo Jaime, Laredo, Tex. (Court-appointed), for defendant-appellant.

Abel Garcia, Laredo, Tex., pro se.

James L. Turner, Paula C. Offenhauser, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, THORNBERRY and HIGGINBOTHAM, Circuit Judges.

CLARK, Chief Judge:

Abel Garcia appeals his conviction and sentence for conspiracy and possession with intent to distribute marijuana, in violation of 21 U.S.C. Secs. 841(a)(1), 846. We affirm.

I.

Robert A. Aguilera (Aguilera), a/k/a Robert Lopez, drove a Ford Bronco to an apartment complex where Abel Garcia lived. He was met there by Roberto Hinojosa-Pacheco (Pacheco), Garcia's step-brother. Aguilera testified that he was privy to an ensuing conversation where Pacheco offered Garcia $200 to store the Bronco on the apartment's parking lot and safeguard its contents. While it is undisputed that Pacheco gave Garcia two $100 dollar bills as compensation for his undertaking, Garcia denies Aguilera's testimony that Pacheco also advised Garcia that the Bronco contained a load of marijuana. Garcia testified that when he questioned Pacheco, he was only told that the truck was not stolen, and that it contained nothing of importance for him to worry about. Pacheco was not available to testify at Garcia's trial. Pacheco's partner in this and similar schemes involving distribution of marijuana was Miguel A. Juarez-Fierro. These two men were convicted in a joint trial, subsequent to Garcia's trial, of conspiracy and possession with intent to distribute.

Aguilera was a confidential informant to the Texas Department of Public Safety. He was ultimately paid $800 for his information in this case. Aguilera had previously advised Officer Jorge Aguilar of the vehicle's contents, location and destination. Aguilar established surveillance of the vehicle at Garcia's apartment complex. The Bronco was not moved once parked in the complex, and remained in the lot for several days.

Aguilar contacted Eduardo Ruiz, an investigator for the Laredo district attorney's office. Garcia worked for Ruiz at Ruiz's Texaco station. When informed that Garcia was under investigation, Ruiz and a Texas Ranger picked up Garcia in an official vehicle and took him to DPS headquarters. He was questioned for several hours by Aguilar in Ruiz's presence. According to Aguilar, Garcia stated he was aware that marijuana was in the Bronco. Ruiz stated that Garcia never admitted such knowledge. Based on the information of the informant Aguilera and the statement he asserts Garcia made, Aguilar secured a search warrant for the Bronco. It contained over 200 pounds of marijuana in several duffel bags.

The district court suppressed Garcia's statement as the product of an illegal arrest. Garcia attempted to plead guilty when offered a favorable plea bargain, which depended on his later testimony. The court rejected this plea upon learning it was against the advice of Garcia's counsel, to whom Garcia had steadfastly maintained his innocence.

During trial to the bench, Garcia disavowed knowledge of the marijuana in the Bronco. He did not have the keys to the Bronco, and the government produced neither evidence nor testimony that Garcia was ever in or near the vehicle. The Bronco had dark-tinted windows, so he could not see into it. Garcia testified that he believed the vehicle contained electronic merchandise which Pacheco intended to smuggle into Mexico for sale. Pacheco had done this in the past, and Garcia believed the Bronco was part of one of these deals. While Garcia admits that Pacheco told him there was "a package there with something," Garcia testified "I was curious. But I never thought it would be marijuana." While he thought it "strange" for Pacheco to give him so much money for the simple act of "allowing" the vehicle to remain on the apartment complex lot, Pacheco assured him the vehicle was not stolen. According to Garcia, Pacheco told him that it "just contained something. But, [Pacheco] never said what."

Garcia was convicted of conspiracy to possess with intent to distribute and possession with intent to distribute marijuana, in violation of 21 U.S.C. Secs. 841, 846. The district court calculated Garcia's guideline range, which allowed a reduction for minor participation, but denied any reduction for acceptance of responsibility. The court imposed concurrent terms of 42 months imprisonment, three years of supervised release and a special assessment of $100.

II.

Garcia alleges three grounds of error: (1) the government improperly withheld discoverable material requested by Garcia's counsel concerning the confidential informant; (2) the evidence was insufficient to convict him of either possession or conspiracy; and (3) the sentencing court erred in allowing no reduction for acceptance of responsibility.

A. Discovery of Background of Confidential Informant

Prior to trial Garcia's counsel filed numerous discovery motions, two of which are relevant here. A "MOTION FOR DISCOVERY AND INSPECTION" requested the "name, identity and whereabouts of any informer who gave information leading to the arrest of the Defendant, and whether said informant was paid by the Government for such information." A "MOTION OR REQUEST FOR DISCLOSURE OF INFORMATION REGARDING CONFIDENTIAL INFORMANTS" more specifically addressed these concerns. It requested, among other things, information on any written agreements, the confidential informant's files, the nature and duration of the confidential relationship, the terms and requirements of the current agreement, any monies paid or accrued, charges to be dismissed or plea agreements reached, and the method and number of investigations by any confidential informant. The district court made no recorded ruling on these motions. The record contains no written response by the government.

At trial, the government put its paid confidential informant, Aguilera, on the stand. Garcia did not interpose an objection or a request for continuance. The judge took an active role in the questioning of witnesses. To the court's question, "Did they pay [for your information and role] in this case?" Aguilera responded, "No, sir." Aguilera's responses to the status of charges, if any, filed against him in this transaction were abstruse. The court also asked, "Have you been convicted of anything before?" Aguilera responded, "No, sir, I haven't." This answer walks on the technical edge of the truth. As Garcia's counsel discovered after trial, Aguilera had been put on probation for assault for one year by a Texas court pursuant to a "deferred adjudication" procedure provided by Texas law. Because he met the terms of his probation, no final adjudication of guilt was made.

A question was raised as to the nature of the confidential relationship. The government put Officer Aguilar back on the stand. He had testified previously about the surveillance and investigation leading to the prosecution at hand. He testified that Aguilera was their informant from the beginning, that he had worked for them previously, and that no charges were ever contemplated against him based on this transaction. The court again asked questions about monetary arrangements. Aguilar responded that Aguilera received $800, but that this amount had not been set in advance, nor did it depend on testimony at trial.

Garcia argues that Aguilera's false and equivocal answers at trial, when scrutinized in the light of his discovery requests, demands reversal for violation of FED.R.CRIM.P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We disagree.

Assuming that Garcia's motions--never responded to by the government or brought to the court's attention for rulings--were proper requests under Rule 16 and that the government was obliged to produce the requested information, when Aguilera took the stand, Garcia neither objected nor requested additional time. Rule 16 states its own remedy for violation:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.

FED.R.CRIM.P. 16(d)(2) (emphasis added). Failure to object or to request a continuance to meet effectively material subject to disclosure during discovery weighs against a defendant when the prejudice complained of on appeal could have been corrected by originally drawing the court's attention to the matter during the trial. United States v. Scruggs, 583 F.2d 238, 242 (5th Cir.1978); United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971); see also United States v. Kubiak, 704 F.2d 1545, 1551-52 (11th Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 163, 78 L.Ed.2d 149 (1983). Without regard to whether the government's nondisclosure may have been in any way justified, "our cases consistently have required a showing of prejudice to the substantial rights of the defendant before reversing because of an error in administering the discovery rules." Scruggs, 583 F.2d at 242.

In Garcia's case, the information requested substantively concerned only the informant's credibility. However, the court itself tested the limits of this credibility. The judge brought out the paid status of the informant, despite Aguilera's testimony to the contrary. Technically, Aguilera testified truthfully about his previous convictions. Under Texas law, successful probation of a deferred...