U.S. v. Ocanas

• Citation: 628 F.2d 353
• Decision Date: 14 October 1980
• Docket Number: No. 79-5561,79-5561
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Natividad OCANAS, Santiago Casiano, Jr., Ramiro Gonzalez Alvarado, Rogelio Jose De La Garza and Amadeo Uresti Garza, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 353

628 F.2d 353

UNITED STATES of America, Plaintiff-Appellee, v. Natividad OCANAS, Santiago Casiano, Jr., Ramiro Gonzalez Alvarado, Rogelio Jose De La Garza and Amadeo Uresti Garza, Defendants-Appellants.

No. 79-5561.

United States Court of Appeals Fifth Circuit.

Oct. 14, 1980.

L. Aron Pena, Edinburg, Tex., for defendants-appellants.

James R. Gough, Jr., Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before THORNBERRY, GEE and REAVLEY, Circuit Judges.

THORNBERRY, Circuit Judge:

From at least June 1976 through February 1977, about thirty individuals in Donna, Texas, were involved in importing marijuana from Mexico and distributing it in the United States. The conspirators floated bales of marijuana across the Rio Grande at a farm near Donna, transported them to a rented garage where they hid them in produce trucks, and shipped them to Oklahoma for sale to distributors.

The appellants were first indicted in September 1977. The indictment charged conspiracy to import and importing marijuana, and conspiracy to possess and possessing marijuana with intent to distribute, in violation of 18 U.S.C. § 2 (1976) and 21 U.S.C. §§ 841(a), 846, 952(a), and 963 (1976). In return for pleas of guilty to the first count (conspiracy to import) in this initial indictment, the government promised to drop the remaining counts and agreed to a probated sentence. Relying on this promise, appellants Ocanas, Garza, and de la Garza tendered guilty pleas, but the trial court did not accept the pleas when first tendered. The court took the pleas under advisement, ordered presentence investigations, and set a date for sentencing. Prior to the date set for sentencing and prior to the trial court's acceptance of the guilty pleas, the government obtained a superseding indictment and filed a motion to dismiss the original. Record, vol. 1, at 728. The second indictment charged essentially the same offenses as the original indictment but expanded the time period of illegal activity and added some defendants. The trial court subsequently dismissed the first indictment, never having accepted the tendered pleas.

At a jury trial, appellant Casiano was acquitted of conspiracy to import, but convicted of conspiracy to possess and possession. Appellants Ocanas, Alvarado, Garza, and de la Garza were convicted on all counts. In appealing their convictions, appellants challenge the validity of the superseding indictment and the sufficiency of the evidence against them. They also contend that the trial court erred in admitting the testimony of coconspirator Benevides, in failing to hold a James hearing on the admissibility of certain coconspirators' statements, and in becoming directly involved in the prosecution of the case. Appellants Alvarado and Ocanas also contend that the trial court erred in denying their motion for severance.

For the reasons discussed below, we affirm the convictions.

I. The Superseding Indictment

This court previously decided that the superseding indictment did not place appellants in double jeopardy. United States v. Garcia, 589 F.2d 249 (5th Cir.), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 61 L.Ed.2d 274 (1979). We now find no merit in the remaining challenges to that indictment.

Speedy Trial

The indictment did not deny appellants their Sixth Amendment right to a speedy trial. That right comes into play only after indictment or arrest. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). This indictment followed the first by less than five months. Although in some cases the Due Process Clause may require dismissal of an indictment when it is shown at trial that delay in bringing the indictment caused substantial prejudice to a defendant's right to a fair trial, id. at 324; 92 S.Ct. at 465, appellants made no such showing, relying only on the possibility of prejudice inherent in any delay.

Basis for Indictment

Appellants also complain that the government improperly secured the present indictment by using information obtained during the presentence investigation on the attempted guilty pleas to the charges alleged in the first indictment and information provided by a coconspirator named Benevides, which they contend was obtained in violation of their Sixth Amendment right to counsel.

As to the use of presentence investigation information, appellants rely on Rule 11 of the Federal Rules of Criminal Procedure, which provides that "evidence . . . of statements made in connection with, and relevant to, (pleas or offers of pleas) is not admissible in any civil or criminal proceeding against the person who made the plea or offer." Fed.R.Crim.P. rule 11(e)(6). The government denies that any statements made in the course of plea bargaining or presentence investigation were used in preparing the second indictment or in presenting it to the grand jury, and appellants made no showing to the contrary. We therefore find no merit in this contention. ¹

As to the use of information provided by Benevides, even assuming it was obtained in violation of appellants' Sixth Amendment right to counsel, its role in securing the present indictment provides no basis for finding that indictment invalid. An indictment valid on its face cannot be challenged merely because the grand jury acted on inadequate or incompetent evidence, or even on information obtained in violation of a defendant's Fifth Amendment privilege against self-incrimination. United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974); Lawn v. United States, 355 U.S. 339, 349-50, 78 S.Ct. 311, 317-18, 2 L.Ed.2d 321 (1958).

The Plea Bargain

Appellants' final and most troubling challenge to the superseding indictment is that the government, by obtaining it, breached its plea bargain agreement. After careful consideration, we find no basis for granting relief.

Because a guilty plea waives constitutional rights, see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), the Supreme Court has held that a defendant is constitutionally entitled to relief when the state breaches a promise made to him in return for a plea of guilty, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The Court refrained from deciding exactly what remedy was constitutionally required, but did state "that when a (guilty) plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 262, 92 S.Ct. at 499. See also United States v. Shanahan, 574 F.2d 1228, 1230 (5th Cir. 1978); United States v. Grandinetti, 564 F.2d 723, 725-26 (5th Cir. 1977).

We have previously suggested that a plea bargain is contractual in nature and that when the prosecutor breaches it the underlying basis for the plea fails. Jones v. Estelle, 584 F.2d 687, 689 (5th Cir. 1978); Petition of Geisser, 554 F.2d 698, 704 (5th Cir. 1977). We recognize that principles of contract law provide a useful analytical framework, but surely they cannot be blindly incorporated into the criminal law in the area of plea bargaining. A direct application of contract law to the mutual promises in this case arguably dictates dismissal of those counts in the superseding indictment that correspond to the counts in the first indictment that the government promised to drop in return for pleas of guilty. We reject that result in favor of one more consistent with the just and efficient administration of criminal justice.

The danger in a pure contractual approach to plea bargaining is that it may seduce one into thinking that the plea bargain involves only two parties, the prosecutor and the defendant, when in fact the trial court plays a critical role in the process. Plea bargaining is governed by Rule 11 of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. rule 11, 18 U.S.C.A. Under Rule 11, the trial court clearly retains discretion in accepting or rejecting plea bargains. United States v. Bean, 564 F.2d 700, 702 (5th Cir. 1977); see also United States v. Ellis, 547 F.2d 863 (5th Cir. 1977). That a plea bargain will result in too light a sentence under the circumstances is a sound reason for a refusal to accept it. United States v. Bean, supra, at 704. Only in unusual circumstances will the rejection of a plea bargain be an abuse of discretion. Id.

Thus, the realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court. Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court.

We realize that appellants relied on the government's promise by tendering guilty pleas and submitting to extensive presentence investigations. A showing that the government gained some unfair advantage over them as a result of their reliance might have justified a departure from the general rule. But they offered no evidence that information provided by them in the course of plea bargaining and presentence investigation was used by the government either in obtaining the second indictment or at trial. On this record, we need not decide what sort of post-tender pre-acceptance conduct on the part of the prosecutor would warrant relief.

We find no merit in appellants' final challenge to the superseding indictment.

II. The Testimony of Benevides

Appellants contend that the...