U.S. v. Rodriguez

• Decision Date: 11 January 1995
• Docket Number: No. 93-2653,93-2653
• Citation: 43 F.3d 117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe Gamboa RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 117

43 F.3d 117

UNITED STATES of America, Plaintiff-Appellee, v. Joe Gamboa RODRIGUEZ, Defendant-Appellant.

No. 93-2653.

United States Court of Appeals Fifth Circuit.

Jan. 11, 1995.

Roland B. Moore (Court-appointed), Houston, TX, for appellant.

Jeffery A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for appellee.

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

Before JONES and STEWART, Circuit Judges, and DUPLANTIER ^*, District Judge.

STEWART, Circuit Judge:

Joe Gamboa Rodriguez appeals his conviction for being a felon in possession of a firearm. He contends that the district court erred in several rulings and that the prosecutor impermissibly commented on his post-arrest silence. He also contends that the evidence shows that he was entrapped. We affirm.

FACTS

On or about 12/2/91, Special Agent Ramon Bazan of the Bureau of Alcohol, Tobacco, and Firearms (ATF) acted as an undercover agent in the purchase of a firearm from Rodriguez. Another ATF agent had provided Agent Bazan with a recording device and instructed him to meet Rodriguez and Albert Martinez Medina (also known as "Beto"), an informant, in the parking lot of a Whataburger restaurant. Agent Bazan met Rodriguez and Medina and bought the firearm from Rodriguez. In a one-count indictment filed 8/19/92, a grand jury charged Joe Gamboa Rodriguez with possession of a firearm by a convicted felon.

At trial, the jury heard Agent Bazan's testimony that Rodriguez showed Agent Bazan a pistol that was in the trunk of the car and that all three men got into the car at Agent Bazan's request. Rodriguez negotiated the price of $100, and Medina remained silent as he had been instructed by the ATF. The jury also heard that Rodriguez said that he could get larger caliber firearms or a machine gun for Agent Bazan. Rodriguez did not appear to Agent Bazan to be afraid. The Government played an audio tape recording of the transaction in open court and provided the jury with a transcript of the taped conversation.

The jury also heard Rodriguez' testimony that, in December 1991, Medina called and asked if he knew where to sell a gun. Rodriguez answered that he did not. Medina called a second time and asked Rodriguez to meet him in the apartment parking lot. Medina offered Rodriguez $20 to sell a gun to Medina's friend, who would buy it if Rodriguez would help. According to Rodriguez, when he refused to help, Medina got angry and threatened to get to him or his family. Rodriguez stated that he took the threat seriously because Medina was a member of the Texas Prison Syndicate and had stabbed someone in prison. After Rodriguez agreed to sell the gun, Rodriguez, Medina, and Lupe, Medina's wife, drove to a Whataburger. During the drive, Medina instructed Rodriguez to say that the pistol was his and that the price was $100.

According to Rodriguez, at the Whataburger, Medina introduced Rodriguez to Agent Bazan, took the gun out of the trunk, put it in the front seat between Rodriguez and Agent Bazan, then went inside with his wife to get something to eat. Rodriguez stated that he followed Medina's instructions by selling the gun to Agent Bazan and talking to Agent Bazan about getting more guns in the future.

The Government called Medina as a rebuttal witness. Medina testified that he worked as an informant for the ATF in ten cases and received payment approximating $10,000 for his services. Moreover, Medina received a favorable plea agreement in a firearms conviction, which included a reduced sentence, a possible further reduction in sentence upon motion by the Government, and protective custody because the Texas Syndicate allegedly had contracted to kill him. Medina testified that the ATF asked him to put the word out that he would be willing to sell "hot" jewelry, gold, VCR's, camcorders, and firearms. About three or four months before the instant sale, Medina spoke to Rodriguez about purchasing guns. Medina denied threatening Rodriguez and stated that Rodriguez eventually contacted him to sell a gun. According to Medina, when he picked Rodriguez up at his apartment, Rodriguez had the gun wrapped in a towel, and Medina opened the trunk to permit Rodriguez to place the gun in the trunk. Contrary to Agent Bazan's testimony yet consistent with Rodriguez' testimony, Medina stated that he was not present during the negotiations between Agent Bazan and Rodriguez.

The jury returned a verdict of guilty, and the district court imposed a term of imprisonment of 188 months, a five-year term of supervised release, and a special assessment of $50.

DISCUSSION

ISSUE 1: WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN ALLOWING CROSS-EXAMINATION OF THE DEFENDANT REGARDING HIS PRE-TRIAL FAILURE TO MENTION HIS ENTRAPMENT DEFENSE?

Rodriguez contends that his due process rights were violated when the Government questioned him at trial concerning his post-arrest silence. ¹

Specifically, Rodriguez complains of the following sequence of questions. On cross-examination, the Government asked: "Mr. Rodriguez, ... when did you tell the police about the threat you received?" Rodriguez answered that he did not tell the police, and counsel for Rodriguez objected on grounds that the question constituted "a comment on Mr. Rodriguez's post-arrest silence." The district court overruled the objection. The Government continued the cross-examination, and the following colloquy occurred:

[Prosecutor]: And, of course, the reason you didn't tell the police about that threat was because you were afraid of Beto Medina; is that your story?

[Defense counsel]: I'd like--just for the record, I'd like to renew my previous objection.

THE COURT: Overruled.

[Rodriguez]: I was afraid of the Texas Syndicate and him, yes, sir.

[Prosecutor]: And you thought the best time to come in here and tell the story was today?

[Defense counsel]: Again, just for the record, I have to object again.

THE COURT: Overruled.

[Rodriguez]: Yes, sir.

The government argues that, given the time period that elapsed between this offense and Rodriguez' arrest, it sought to clarify the timing of his claim, as opposed to commenting on the substance of the claim. The government contends that its inquiry "compared the reasonableness of the two year delay in accusing the informant of threatening him with Rodriguez' credibility." According to the government, the prosecutor's inquiry related to Rodriguez' pre-arrest silence, not to his post-arrest silence, and Rodriguez has failed to meet his burden of proving that the sole purpose of the inquiry was to comment upon Rodriguez' post-arrest silence.

In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment of a defendant's exculpatory story, told for the first time at trial, by using the defendant's post-arrest silence. A prosecutor's or witness's remarks constitute comment on a defendant's silence if the manifest intent was to comment on the defendant's silence, or if the character of the remark was such that the jury would naturally and necessarily so construe the remark. United States v. Carter, 953 F.2d 1449, 1464 (5th Cir.1992), cert. denied sub nom., Hammock v. United States, --- U.S. ----, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992) (citing United States v. Shaw, 701 F.2d 367, 381 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984)). Although virtually any description of a defendant's silence following arrest and a Miranda ² warning will constitute a Doyle violation, a prosecutor's comments must be evaluated in context. United States v. Laury, 985 F.2d 1293, 1303 (5th Cir.1993) (internal quotation and citations omitted). In Chapman v. United States, 547 F.2d 1240 (5th Cir.1977), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), the Court classified Doyle violations into three categories:

When the prosecution uses defendant's post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant's ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous.

When the prosecutor does not directly tie the fact of defendant's silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.

When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.

547 F.2d at 1249-50 (citations and footnote omitted). Many cases cannot be resolved solely by reference to the Chapman categories; in such instances, we apply a case-by-case approach using the Chapman categories as guidelines for assessing the prejudice to the defendant in the particular context, including the strength of the evidence. Carter, 953 F.2d at 1465.

As in Laury, the instant prosecutor's questions were sufficiently broad as to be construed as commentary on Rodriguez' failure to come forward with his alibi (1) prior to arrest, (2) immediately after arrest and Miranda warnings (the classic Doyle violation), and (3) during the time period prior to trial but following his arrest (the non-classic Doyle violation). ³ See Laury, 985 F.2d at 1302 and at n. 11. The Doyle protection derives primarily from the implicit assurance of the Miranda warnings and...