U.S. v. Insaulgarat, 02-40917.

• Decision Date: 19 July 2004
• Docket Number: No. 02-40917.,02-40917.
• Citation: 378 F.3d 456
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Enrique INSAULGARAT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

378 F.3d 456

UNITED STATES of America, Plaintiff-Appellee, v. Luis Enrique INSAULGARAT, Defendant-Appellant.

No. 02-40917.

United States Court of Appeals, Fifth Circuit.

July 19, 2004.

COPYRIGHT MATERIAL OMITTED

Tony Ray Roberts (argued), McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., Timothy William Crooks (argued), Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

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

Before GARWOOD, HIGGINBOTHAM and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Luis Enrique Insaulgarat appeals his conviction and sentence for possession of marihuana with intent to distribute. We affirm his conviction, but vacate his sentence and remand for resentencing.

Facts and Proceedings Below

On December 13, 2001, after a jury trial, the appellant Luis Enrique Insaulgarat (Insaulgarat) was found guilty of one count of possession with intent to distribute over 100 kilograms of marihuana. The offense was alleged to have been committed on or about August 21, 2001. On February 22, 2002, Insaulgarat was sentenced to 262 months' imprisonment, a five year term of supervised release, and a mandatory special assessment of $100.

The trial evidence reflected the following. Insaulgarat worked for LD Express, a Miami-based driver services business owned by Lorenzo D'Erbiti (D'Erbiti) that provides drivers for transporting various kinds of goods.¹ In August of 2001, Insaulgarat drove an empty trailer from Miami to Atlanta, where he picked up a load and transported it to Michigan. He then picked up another shipment in Michigan that was to be transported to Techno Trim, in care of Big Lake Transport in Laredo, Texas. According to personnel at Big Lake and the log book that Insaulgarat kept, the Techno Trim shipment arrived in Laredo on August 18, 2001. Insaulgarat then received instructions from D'Erbiti on the morning of August 20, 2001, that he was to transport a load of air conditioning equipment from Laser Forwarding, in Laredo, to Lennox Global Air Conditioning of Miami. This equipment was scheduled for delivery in Miami by 9:00 a.m. on August 22, 2001.

On the morning of August 20th, Insaulgarat took his now empty tractor trailer to Laser Forwarding to be loaded.² The loading of the trailer lasted until approximately 7:00 p.m., at which time the Laser Forwarding employee who had been loading it took a picture of its contents and then put a metal seal on its rear. The seal number was recorded on the bill of lading, which Insaulgarat signed. Although Insaulgarat departed the Laser Forwarding warehouse at approximately 7:10 p.m. on August 20, 2001, he did not arrive at the Border Patrol checkpoint, located just north of Laredo, until nearly 24 hours later.

Insaulgarat arrived at the Border Patrol checkpoint outside Laredo at approximately 6:20 p.m. on August 21st. A canine alerted to the rear of the trailer, so Insaulgarat proceeded to secondary inspection. The Border Patrol agent instructed Insaulgarat to open the trailer, which the agent noticed did not have a seal on it. Upon entering the trailer, the agent discovered 60 bundles of marihuana, weighing approximately 981 pounds. The agent seized the marihuana, the bill of lading, a cellular telephone, and a log book from the vehicle, and turned these items over to the DEA. DEA agent Mike Rubalcaba (Rubalcaba) then interviewed Insaulgarat.³

At trial, Insaulgarat took the stand in his own defense. He testified that he did not actually arrive in Laredo on August 18, 2001, as his log book said, but rather on August 20, 2001, at 5:50 a.m., and that he was therefore late with the delivery of the cargo from Michigan because his tractor's engine kept overheating during the trip. He claimed that upon arriving in Laredo, he went directly to Big Lake, where his cargo was to be unloaded, and waited for the company to open at 7:00 a.m. Insaulgarat asked the person receiving the merchandise at Big Lake to write down that he had in fact arrived on August 18, so as to avoid the $100 fee that results from showing up late. In exchange for this favor, Insaulgarat claims he sold the Big Lake employee two locks at a discounted price.⁴

At 9:00 a.m. the morning of August 20, Insaulgarat claims that he received instructions to carry a load from Laredo to Miami. After arriving at Laser Forwarding to receive the cargo at 9:30 a.m., he slept in his cab until about 2:00 p.m. He then woke up, unhooked the tractor from the trailer, and drove the tractor to a local truck stop where he played video games, returning at approximately 5:00 or 6:00 p.m. After the trailer was loaded at 7:00 p.m., the seal was placed on the door. Insaulgarat testified that it was possible to enter the trailer without breaking the seal.

Insaulgarat testified that he left Laser Forwarding around 7:00 p.m., went to a truck stop in Santa Maria where he showered and ate, and then took a taxi to Nuevo Laredo, Mexico. There, he claims, he bought earrings for his daughter, saw a movie, and walked around.⁵ Insaulgarat returned to his tractor-trailer at 3:00 or 4:00 a.m. the following morning. He claims that he could not leave until 7:00 p.m. the next day because he wanted the tractor to cool down and he needed to rest.⁶ He stayed in his cab and rested until 4:00 p.m., at which time he claims that he took the trailer to be washed and weighed. He then proceeded to the checkpoint. Insaulgarat testified that he noticed that the seal was still on the trailer when he returned from Nuevo Laredo early in the morning on August 21, and that he did not recheck the seal before proceeding to the checkpoint because he did not leave the tractor-trailer alone after he had last checked it.

Insaulgarat's cell phone records indicated that he made and received a large number of calls to and from telephone numbers with Laredo area codes while he was en route to Laredo and while he was there. Furthermore, Insaulgarat stated that he had picked up a fellow trucker, Roberto, whose truck had broken down outside Atlanta, and who wanted to go to Laredo. Although Insaulgarat did not know at the time that he would be going to Laredo, Roberto accompanied him to Michigan, and then, serendipitously, to Laredo. Insaulgarat claims that he let Roberto use his cell phone to call his wife, daughter, and his company. Records from the phone company showed that a Laredo cell phone number registered to Rosalinda Gutierrez (Gutierrez) called Insaulgarat's cell phone multiple times, including around the time that he was at the checkpoint. Agents learned that Gutierrez had given the cell phone to Manuel Olvera (Olvera), but when they went to speak with Olvera, they discovered that he had moved out the day of Insaulgarat's arrest.

Other relevant facts will be noted in the discussion of the issues to which they pertain.

Discussion

I. Improper prosecutorial comments

Insaulgarat argues that the prosecutor made improper remarks and asked improper questions that denied him a fair trial. He first claims that prosecutorial misconduct occurred when the Assistant U.S. Attorney (AUSA) elicited testimony from Agent Rubalcaba that Gutierrez came to court on the first day of trial pursuant to a trial subpoena, but had an attorney with her and declined to make a statement. Insaulgarat next claims error because of the AUSA's comment to him during his cross examination that he could be better understood if he told the truth.

A. Standard of Review

In reviewing a claim of prosecutorial misconduct, this Court applies a two-step analysis. United States v. Lankford, 196 F.3d 563, 574 (5th Cir.1999). We must first decide whether or not the prosecutor "made an improper remark." United States v. Munoz, 150 F.3d 401, 414 (5th Cir.1998). In determining whether a prosecutor's comment was improper, it is necessary to look at the comment in context. United States v. Washington, 44 F.3d 1271, 1278 (5th Cir.1995). If an improper remark was made, we must then determine whether the remark "prejudiced the defendant's substantive rights." Munoz, 150 F.3d at 415. The prejudice determination involves "(1) the magnitude of the statement's prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant's guilt." United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir.1995). "The determinative question is whether the prosecutor's remarks cast serious doubt on the correctness of the jury's verdict." United States v. Iredia, 866 F.2d 114, 117 (5th Cir.1989).

B. Comments

1. Elicitation of Rubalcaba's testimony about Rosalinda Gutierrez

At trial, DEA Agent Rubalcaba testified on redirect examination by the AUSA that Gutierrez was subpoenaed for Insaulgarat's trial, and that she arrived on the first day of trial. However, Rubalcaba could not ask Gutierrez anything at that time because "she refused to talk" and had a lawyer with her.⁷ Insaulgarat claims that the government impermissibly created an inference that Gutierrez was guilty by introducing evidence that she refused to speak to Rubalcaba, and in turn, tainted Insaulgarat's credibility by making him appear guilty by association with her. Insaulgarat argues that this Court has made it clear that it is improper to elicit evidence that a defendant invoked his right to counsel and remained silent. He cites cases where this Court has criticized introduction of "guilt by association" evidence, has not allowed introduction of evidence of a co-conspirator's guilty plea, and has not allowed a prosecutor to call a witness to testify knowing that the witness would invoke the right not to testify. See, e.g., United States v. Taylor, 210 F.3d 311, 316-18 (5th Cir.2000); United States v. Leach, 918 F.2d 464, 467 (5th Cir.1990); United States v. Brown, 12 F.3d 52 (5th Cir.1994).

In Brown, this Court held that a prosecutor cannot call a witness,...