United States Court of Appeals

Fifth Circuit



## FILED

July 19, 2004

Charles R. Fulbruge III

Clerk REVISED AUGUST 2, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-40917

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ENRIQUE INSAULGARAT,

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 Below1 Insaulgarat is a Cuban citizen, legally in the United

States as a political refugee.

2 On December 13, 2001, after a jury trial, the appellant Luis

Enrique Insaulgarat (Insaulgarat) was found guilty of one count of

possession with inte nt 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 ye ar 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 Lor enzo 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, 2 001.

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 empty2 Initially, two trailers were requested to haul the air

conditioning equipment to Lennox of Miami. However, after

Insaulgarat arrived it was discovered that the merchandise would

fit into one trailer. When the second trailer that had been

ordered arrived at Laser Forwarding, about an hour after

Insaulgarat, it was advised that it would not be needed.

3 During this interview, Insaulgarat’s cell phone rang

repeatedly. When one of the agents answered it, a male voice on

the other end asked who was speaking and then hung up.

3 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 p ut a metal seal on its rear. The seal

number was recorded on t he 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

fromthe vehicle, and turned these items over to the DEA. DEA

agent Mike Rubalcaba (Rubalcaba) then interviewed Insaulgarat. 34 Insaulgarat testified that he had to arrange his log book

to meet his deadlines and conform with trucking regulations about

driving time and resting periods. Therefore, he adjusted the log

book to show that he arrived in Laredo on August 18, the deadline

for the Michigan delivery, rather than August 20, when he

actually arrived.

In the government’s rebuttal case, the Big Lake employee

testified that the arrival date was in fact August 18, and he

denied that he had been asked to put down August 18 instead of

August 20.

4 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 carg o 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 v ideo games, returning at5 This contradicted what Rubalcaba said that Insaulgarat told

him during his post-arrest interview. There, he claims,

Insaulgarat said that while in Nuevo Laredo he went to Boys Town,

an adult entertainment location, and did not return until 3:00 pm

the following afternoon.

6 In his brief, Insaulgarat also notes that he did not drive

on the night of August 20, 2001, after loading up at Laser

Forwarding, because he had traveled 3000 miles in a period of

seven days, and had to rest for a period of twenty-four hours.

5 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 the6

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 tru cker, 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 tha t denied him a fair trial. He

first claims that prosecutorial misconduct occurred when the7

Assistant U.S. Attor ney (AUSA) elicited testimony from Agent

Rubalcaba that Gutierr ez came to court on the first day of trial

pursuant to a trial subpoe na, 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.” U nited 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. U nited 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.” M unoz

, 150 F.3d at 415. The prejudice

determination involves “(1) the magnitude of the sta tement’s

prejudice, (2) the effect of any cautionary instructions given, and

(3) the strength of the evidence of the defendant’s guilt.” U nited

States v. Tomblin

, 46 F.3d 1369, 1389 (5th Cir. 1995). “The

determinative question is whether the prosecutor’s re marks cast

serious doubt on the correctness of the jury’s verdict.” U nited

States v. Iredia , 866 F.2d 114, 117 (5th Cir. 1989).7 During the government’s redirect examination of Rubalcaba,

the following exchange took place:

[Prosecutor]: Well, first of all, did you make any attempts

to go locate Rosalinda Gutierrez?

[Witness]: Yes.

[Prosecutor]: And were you able to interview her?

[Witness]: Yes.

[Prosecutor]: And did you serve or try to serve or serve a

subpoena on her?

[Witness]: Yes. . . . She showed up here yesterday.

[Prosecutor]: Okay. And did you ask Rosalinda

Gutierrez anything else after she showed up?

[Defense]: Objection, Your Honor. That might be

hearsay.

[Court]: No. That’s as far as did you ask her anything

else? Yes or no.

[Witness]: After she showed up here?

[Prosecutor]: Yes.

[Witness]: No.

[Prosecutor]: Why not?

[Witness]: She refused to talk.

[Prosecutor]: Why not? Was there anybody with her?

[Witness]: A lawyer.

[Defense]: Your Honor, objection. Your Honor, we make

a motion for a mistrial.

[Prosecutor]: They’ve been asking questions as far as –

[Court]: No, that’s overruled.

8 B. Comments

1. Elicitation of Rubalcaba’s testimony about Rosalinda

Gutierrez

At trial, DEA Agent Rubalcaba testifie d 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 “sh e refused to talk” and had a lawyer with her. 7

Insaulgarat claims that the governmen t impermissibly created an

inference that Gutierrez was guilty by introducing evide nce that9

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 evi dence 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. S ee, 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, knowing that the witness will invoke the right not to

te stify, when it is done to create an improper inference. The

prosecution in Brown called the defendant’s son (and her husband)

to testify, knowing that they would invoke their rights not to

testify. We held that “there [was] a reasonable probability that

the jury inferred guilty knowledge on the part of both the

defendant and the witness from [the son’s] refusal to testify.”

Id

. at 54. We continued, “[u]nder certain circumstances the forced

invocation of a testimonial privilege in the presence of the jury

will warrant reversal.

. . . [such as] when the government makes a8 In Watson , the court held that because there was no

showing that the prosecutor knew that the witness would invoke

the Fifth Amendment, there was no need for reversal. The

prejudice was not great enough. However, in the case sub judice

, the prosecutor had knowledge that Gutierrez had invoked the

privilege, and therefore intentionally elicited the comment from

Rubalcaba.

10 ‘conscious and flagrant effort to build a case based on the

unfavorable inferences which inure from a claim of the privilege’

. . . . [or] when those inferences add critical weight to the

government’s case in a form that is not subject to crossexamination.” I d

. (citing United States v. Watson

, 591 F.2d 1058,

1062 (5th Cir. 1979) 8 ). In B rown

, because the son and husband

invoked the privilege and did not testify, the defense counsel did

not have an opportunity to cross-examine them in order to dispel

the adverse inferences that may have arisen from their silence.

Similarly here, the Rubalcaba exchange took place on redirect, and

because Gutierrez did not take the stand, there was no chance for

the defense to question her.

While there are some underlying similarities, Insaulgarat’s

claim differs from those presented in B rown and Watson

, beca use

Gutierrez herself was never called to testify and therefore did not

invoke her right to silence “in the presence of the jury,” as did

the son in Brown

. 12 F.3d at 54. Rather, it was Agent Rubalcaba’s

testimony that referred to her refusal to speak with him.

Moreover, unlike the prosecution in Brown

, the record shows that

the government in the case sub judice did not make a “conscious and9 According to the cell phone records that were entered into

evidence, Insaulgarat’s cell phone had frequently received calls

from a specified number in Laredo. It was established that this

number belonged to a cell phone owned by Gutierrez. However, on

direct examination the Voicestream Wireless representative did

not discuss Gutierrez’s ownership of the phone, and when

discussing the calls from the cell phone in question, Rubalcaba

stated on direct that the phone was being used by Olvera without

mentioning Gutierrez.

11 flagrant” effort to build a case based on inferences drawn from the

fact that Gutierrez ha d a lawyer with her and would not speak to

Rubalcaba. In fact, the prosecution did not bring out the fact

that Gutierrez owned the cell phone at iss ue. 9 Rather, on cross

examination of Rubalcaba and the cell pho ne representative,

Insaulgarat’s counsel raised the point that the phone was in fact

owned by and registered to Gutierrez , that she previously had

stated she lost it and disconnected it, and that the phone records

did not actually reveal who placed a call from the phone, just to

whom it was registered. The defense counsel then offered into

evidence Insaulgarat’s cell phone records.

The line of questio ning to which Insaulgarat objects came

about during the redirect of Rubalcaba, apparently o nly to show

that the government was not trying to hide Gutierrez. During the

prosecution’s closing argument, while the AUSA did address Olvera’s

use of the phone and his disappearance soon after Insaulgarat’s

arrest, no attenti on was called to Gutierrez or to the fact that

she refused to speak to Rubalcaba or had a lawyer. Clearly, the

government’s case was not to any extent based on, let alone built12

around, any inferences drawn from the fact that Gutierrez would not

speak to Rubalcaba (or had a lawyer) or, indeed, any inferences at

all about Gutierrez.

Moreover, even if we were to assume, a rguendo

, that the

comment was improper, any potential for prejudice caused by the

elicitation of the Gutierrez information was minor and limited, and

Rubalcaba’s testimony in that respect did not add any material

weight to the government’s case. Even if the jury inferred that

Gutierrez knew the phone was being used for illegal purposes, there

was no evidence or argument that Gutierrez and Insaulgarat had any

asso ciation whatsoever. The prosecution’s case in this respect

focused only on the fact that Olvera used the p hone, that there

were multiple calls to the Laredo area, and that Insaulgarat

claimed he had only been to Laredo on o ne prior occasion. There

was no focus on G utierrez. Additionally, even if her refusal to

speak to Rubalc aba did infer knowledge of criminal activity,

Insaulgarat’s defense did not rely upon innocent use of Gutierrez’s

phone, but rather upon the claim that Insaulgarat’s passenger made

the calls to Laredo, or that his (Insaulgarat’s) phone records had

been falsified. There is simply no reasonable possibility that the

verdict was i nfluenced or affected by the complained of evidence

concerning Gutierrez.

We hold that the prosecution’s introduction of evidence about

Gutierrez’s having a lawyer and refusing to speak to Rubalcaba does13

not constitute reversible error.

2. AUSA’s comment during cross examination of

Insaulgarat that he could be better understood if he told the

truth.

Insaulgarat took the stand in his own defense, claiming that

he was innocent of any wrongdoing r elated to the charge. During

his cross examination, the prosecution questioned Insaulgarat about

the cell phone documents and calls. Insaulgarat refused to answer

questions about the Laredo cell phone numbers and merely asserted,

without explanation or evidentiary support, that the phone records

were fals ified by the phone company. The AUSA then asked him

whether he was saying that the phone company made up the calls to

and fromLaredo but not the calls to his house. Insaulgarat

replied by stating, “I’m going to tell you something, and it’s just

maybe it’s a way of you under standing me better – excuse me, but

this is my defe nse. I’m innocent.” The prosecutor replied by

stating, “We would really understand you better if you told us the

truth.”

After the prosecutor made this comment, Insaulgarat’s defense

counsel objected and made a motion for mistrial. The court

resp onded by stating that the prosecutor’s comment “will be

str icken,” but overruled the motion for mistrial. The court

instructed Insaulgarat to simply answer the questions posed by the

prosecutor. Both during the course of the trial and in its14

i nstructions to the jury, the court informed the jury that

statements by the lawyers are not evidence, and instructed the jury

to disregard anything stricken from the record. Insaulgarat,

however, claims that the AUSA’s comment deprived him of a fair

trial because his defense relied heavil y on his credibility, and

this comment might have led the jury to believe that the government

had “extra-record knowledge” pertaining to Insaulgarat’s veracity.

It is arguable that this remark constituted improper crossex amination. C f. United States v. Anchondo-Sandoval

, 910 F.2d

1234, 1238 (5th Cir. 1990) (“even the most inexperienced prosecutor

should be aware that it is improper and highly inappropriate to

interject his or her personal opinion of the defendant’s veracity

into the decision-making process”). However, the AUSA’s comment

here was a direct response to Insaulgarat’s comment, which was an

attempt at avoiding the AUSA’s prior question. S ee Washington

, 44

F.3d at 1278 (looking at the prosecutor’s comments in context to

determine whether they were improper). In context, the AUSA’s one

brief spontaneous remark is most reasonably understood as referring

not to matters not in evidence but only to the facial

implausibility of Insaulgarat’s bizarre testimony about the phone

records. Because the judge did promptly strike the comment from

the record, and nothing like it was mentioned again during trial or

closing arguments, Insaulgarat has not shown that it “cast serious

doubt on the correctness of the jury’s verdict.” I redia

, 866 F.2d10 We recognize the appellant’s argument that this Court has

found that merely sustaining an objection and striking the

objectionable prosecutorial comment is not always sufficient to

remove the taint of the objectionable comment. See United States

v. Labarbera , 581 F.2d 107, 109 (5th Cir. 1978). However, in

that case, the prosecutor made more than one improper comment

about evidence outside the record, such as the fact that the

defendant was involved in other criminal misconduct, and that the

prosecutor had knowledge of evidence which was not before the

jury and which showed guilt of the crime at issue. The taint in

that case was much more severe and plain than that in the case

sub judice . Here, the jury instruction was clearly enough to

remove any taint.

11 The portion of the report at issue indicated that “[a]fter

[Insaulgarat] was advised of his rights, he claimed he did not

know the marijuana was inside the trailer.”

15 at 117. 1 0 Indeed, considering the record as a whole there is no

reasonable possibility that the remark by the AUSA influenced or

affected the verdict.

II. Admissibility of the Border Patrol agent’s report

At trial, during cross examination of Border Patrol Agent Jose

Ramos (Ramos), the defense sought to introduce into evidence a

report prepared by Ramos, who had searched Insaulgarat’s trailer at

the checkpoint. 11 Insaulgarat wanted to use the report to establish

that he denied knowle dge of the presence of the marihuana at the

time of his arrest.

A. Standard of Review

A district court’s decision concerning the admission of

evidence is generally reviewed for a buse of discretion. U nited

States v. Cantu

, 167 F.3d 198, 203 (5th Cir. 1999). A district

court abuses its discretion if it bases its decision on an error of12 Insaulgarat does not appeal that ruling, or any other

aspect of the cross examination, and instead relies only on the

hearsay exception in its relation to the report. Regardless, the

report, and anything Insaulgarat may have said to Ramos at the

time of his arrest, was not addressed on direct, and the scope of

16 law or a clearly erroneous assessment of the evidence. U nited

States v. Mann

, 161 F.3d 840, 860 (5th Cir. 1998), cert. denied

,

526 U.S. 1117 (1999). If the district court erred in its

evidentiary ruling, this Court must then decide whether the error

was harmless. C antu

, 167 F.3d at 203. In determining whether the

error was harmless, this Court considers the importance of the

evidence to the prosecution’s case, whether it was cu mulative,

whether it is corroborated or contradicted by other evidence on

material points, the extent of cross-examination, and the overall

strength of the prosecution’s case. U nited States v. Edwards

, 303

F.3d 606, 623 (5th Cir. 2002).

B. At Trial

On direct, Agent Ramos testified to the discovery of marihuana

in the trailer, but he did not testify to anything the defendant

said or did not say after the marihuana was discovered, nor did he

testify as to any r eport he prepared. On cross examination, the

defense attempted to ask Agent Ramos what the defendant had said at

the time of his arrest when he was asked whether he knew his

trailer had marihuana in it. However, the court sustained the

government’s hearsay objection, and did not allow the agent to

testify as to what Insaulgarat’s response was. 1 2 D efense coun selcross cannot exceed that of direct, so the court did not err in

disallowing the Agent’s response. See U.S. v. Lowenberg, 853

F.2d 295, 300 (5th Cir. 1988) (“Federal Rule of Evidence 611

makes clear that a trial judge is not required to permit

cross-examination that exceeds the scope of the direct

examination.”).

17 was permitted only to ask agent Ramos, “did you ask Mr. Insaulgarat

if he knew that this trailer had marihuana in it, yes or no?” and

Agent Ramos responded affirmatively. Defense counsel admitted that

he was not trying to impeach Ramos by asking these questions,

because Ramos had not testified to his repo rt or to what the

defendant said or did not say. The court did not allow the report

into evidence, and denied the defendant’s proffer of the report

outside the presence of the jury

.

C. Discussion

Insaulgarat claims that the district court erred in excluding

the border patrol report in violation of Federal Rule of Evidence

803(8)(B), the pu blic records exception to the hearsay rule.

However, the district court stat ed that in criminal cases the

803(8) exception does not apply to reports made by police and other

officers, and therefore declined to admit the evidence a nd held

that the report could only be admitted for impeachment purposes.

Though hearsay evidence is generally excluded, there is an

exception for public records and reports. Federal Rule of Evidence

803(8) states that a hearsay exception exists for:

“Records, reports, statements, or data compilations, in18

any form, of public offices or ag encies, setting forth

(A) the activities of the office or agency , or (B)

matters observed pursuant to du ty imposed by law as to

which matters t here was a duty to report, e xcluding,

however, in criminal cases matters observed by police

officers and other law enforcement personnel

. . .” Fed.

R. Evid. 803(8) (emphasis added).

Appellant contends that the rule in fact only intended to

prevent prosecutors from using police reports as evidence against

criminal defendants. Appellant cites 5 Weinstein’s Federal Evid.

§ 803.10(5) at 803-102 (2003), and United States v. Smith

, 521 F.2d

957, 968[-69 n. 24] (D.C. Cir. 1975) in support of his argument

that most courts have concluded that Congress did not intend for

these reports to be excluded when the defendant seeks to introduce

them into evidence. Therefore, Insaulgarat claims, the district

court’s ruling was an abuse of discretion and the error was not

harmless because this report would have done much to bolster the

credibility of his own version of the events “by showing that his

protestati ons of innocence were not a fabrication for trial, but

had been made from the outset of the case.”

The plain language of the rule does not distinguish between a

defendant’s and a prosecutor’s use of a police report. In United

States v. Sharpe

, 193 F.3d 852, 868 (5th Cir. 1999), the defendant

appealed the refusal to admit exculpatory FBI lab reports, but we

applied the rule according to its terms, holding that “Rule

803(8)(B) excludes ‘matters observed by police officers and other

law enforcement personnel’ in criminal cases.” There is, however,19

substantial authority, such as Smith

, supporting Insaulgarat’s

position. S harpe has been criticized, see 4 S ALTZBURG

, M ARTIN & C APRA

,

F EDERAL R ULES OF E VIDENCE M ANUAL

, § 803.03[8][ 1 ][iii], at 803-197

(LexisNexis 8th ed. 2002), but we are bound by the decisions of

Fifth Circuit panels. Furthermore, even assuming, arguendo , that

the district court did err by excluding this report, any error was

clearly harmless.

Though Insaulgarat claims that the report would have bolstered

his credibility, the evidence contained in the report was

ultimately presented to the jury, though via another source: At

trial, Insaulgarat himself testified that a t the time of his

arrest, he told the federal agents at the checkpoint that he had no

knowledge of the marihuana in his trailer. Additionally, Agent

Rubalcaba’s testimony about what Insaulgarat told the agents at the

checkpoint mentioned nothing about Insaulgarat’s knowledge of the

marihuana; it is highly likely the jury would realize that if

Insaulgarat had admitted knowledge of the marihuana at the time of

his arrest, the agents would have testified to that effect. The

purpose that the report would have served was in fact established

by other trial evidence, making it cumulative. Notably, there was

no evidence, nor did the government ever contend, to the contrary.

Therefore, the court’s failure to admit the report did not likely13 Insaulgarat does not argue on appeal that the refusal to

admit the report wrongfully forced him to take the stand, though

he did make this argument at trial. Accordingly, any such claim

has been abandoned. In any event, such claim would be merely

theoretical because the jury would have no reason to assume that

Insaulgarat had admitted (or had not denied) his guilt because,

were that the case, the agents would obviously have so testified.

Moreover, with so much evidence against Insaulgarat, he

effectively had to take the stand if he wanted to stand a chance

of acquittal.

20 affect the outcome of the trial. 13

III. A conviction under the Florida Aggravated Stalking statute is

not a “crime of violence.”

Though Insaulgarat did not raise the objection in the district

court, he argues that he was erroneously sentenced as a career

o ffender because his 1993 Florida conviction for aggravated

stalking should not be considered a crime of violence under

U.S.S.G. § 4B1.2(a). We agree.

A. Standard of Review

Interpreting a guideline such as the career offender provision

in section 4B1.1 is a question of law generally subject to a de

novo review. United States v. Charles , 301 F.3d 309, 312-13 (5th

Cir. 2002) (en banc). However, where a defendant fails to object

below, this Court reviews for plain error. U nited States v.

Meshack

, 225 F.3d 55 6, 575 (5th Cir. 2000). T o establish plain

error, a defendant must show the following: (1) there is an error;

(2) that is clear or plain; (3) that affects the defendant’s

substantial rights; and (4) that seriously affects th e fairness,21

integrity or public reputation of judicial proceedings. Id

.

B. Discussion

Under section 4B1.1 of the Sentencing Guidelines, a defendant

may be sentenced as a career offender if (1) the defendant was at

least eighteen years old at the time the defendant committed the

instant offense of conviction, (2) the offense of conviction is a

felony that is either a crime of violence or a controlled substance

offense, and (3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled substance

offense. Insaulgarat was over eighteen, the instant conviction is

a felony controlled substance offense , and Insaulgarat has two

prior felony convictions, one of which was undisputably for a crime

of violence. At issue is whether his only other prior felony

conviction, namely his aggravated stalking conviction under Florida

Statute section 784.048(4), qualifies as a “crime of vio lence.”

B ecause we hold that it does not, it was error to have sentenced

Insaulgarat as a career offender.

For these purposes, a “crime of violence” is any offense under

federal or state law that is punishable by imprisonment for a term

exceeding one year and “(1) has as an ele ment the use, attempted

use, or threatened use of physical force against the person of

another, or (2) is burglary of a dwelling, arson, or extortion,

involve s use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.”22

U.S.S.G. § 4B1.2(a). Furthermore, Application Note 1 to this

section advises that a

“‘crime of violence’ includes murder, manslaughter,

kidnaping, aggravated assault, forcible sex offenses,

robbery, arson, extortion, extortionate extension of

credit, and burglary of a dwelling. Other offenses are

included as ‘crimes of violence’ if (A) that offense has

as an element the use, attempted use, or threatened use

of physical force against the person of another, or (B)

the conduct set forth (i.e., expressly charged) in the

count of which the defendant was convicted involved use

of explosives (including any explosive material or

destructive device) or, by its nature, presented a

serious potential risk of physical injury to another.”

§ 4B1.2 comment. (n.1).

See generally U.S. v. Hu erta , 182 F.3d 361, 364 (5th Cir. 1999)

(“[C]ommentary in the Guidelines Manual that interprets or explains

a guideline is authoritative unless it violates the Constitution or

a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.”).

If the prior conviction is not one of the enumerated offenses,

and does not have use (or threatened or attempted use) of force as

an element, a categorical approach is ta ken to determine whether

the charged count of conviction, by its nature, presented a serious

potential risk of physical injury. U nited States v. Serna

, 309

F.3d 859, 862 (5th Cir. 2002). Specifically, this Court has held

that under section 4B1.2(a)(2), an offense should only be

considered a crime of violence if, from the face of the indictment,

the crime that was charged presents a serious potential risk of

physical injury. S ee, e.g., United States v. Lee , 310 F.3d 787,14 The PSR, based upon certain investigative reports,

indicates that the incident that led to his aggravated stalking

arrest began with Insaulgarat hiding in some bushes outside of

SN’s home. When she arrived home and was opening the door,

Insaulgarat approached her, placed a pocket knife to her throat,

covered her mouth, and told her not to make any noise. He then

pushed her into the residence, locked the door, tore off her

clothes and sexually assaulted her. We need not, however, look

to the facts assertedly underlying the stalking offense to

determine whether it is a crime of violence; rather, for purposes

of § 4B1.2(a) we look only to the fact of conviction and the

statutory definition of the prior offense, and, in appropriate

cases, the indictment. United States v. Rodriguez-Rodriguez , 323

F.3d 317, 318-19 (5th Cir. 2003) (per curiam).

23 790-91 (5th Cir. 2002); United States v. Charles

, 301 F.3d 309, 314

(5th Cir. 2002) (en banc). Physical injury need not in fact

result, but the indictment must make it clear that the crime

charged in fact posed the risk. Lee , 310 F.3d at 790-91. “If an

indictment is silent as to the offender’s actual conduct, we must

proceed under the assumption that his conduct constituted the least

culpable act satisfying the count of conviction.” U .S. v. Houston

,

364 F.3d 243, 246 (5th Cir. 2004); see also Serna

, 309 F.3d at 863.

According to the pre-sentence investigation report (PSR),

Insaulgarat was arrested in Florida in 1993 and charged with

aggravated stalking, armed burglary, sexual battery, and

kidnaping

. 14 At the time of this arrest, Insaulgarat already had

an injunction against him for domestic violen ce against a woman

(SN). In November of 1993, a jury found Insaulgarat guilty of

aggravated stalking and misdemeanor bat tery, a lesser included15 In Florida in 1993, a person has committed misdemeanor

battery if he “(a) [a]ctually and intentionally touches or

strikes another person against the will of the other; or (b)

[i]ntentionally causes bodily harm to an individual.” Fla. Stat.

Ann. § 784.03 (1993). This misdemeanor battery charge cannot

satisfy the definition of a crime of violence, and the original

indictment for sexual battery was not charged in the count of

conviction. To qualify as a career offender, a defendant must

have had at least two prior felony convictions of either a crime

of violence or a controlled substance offense. Therefore,

Insaulgarat’s misdemeanor battery conviction does not qualify

under the career offender consideration.

16 This qualifies as Insaulgarat’s uncontested prior felony

crime of violence conviction for purposes of the career offender

sentence, and was unrelated to the domestic violence injunction.

17 As the issue was not raised below, we apply the plain

error standard. Because Insaulgarat was sentenced as a career

offender, the guideline range for the offense of conviction was

262-327 months. He was sentenced to 262 months, the bottom of

the range. However, if aggravated stalking is not a crime of

violence for these purposes, and accordingly Insaulgarat is not a

career offender, the range would be from 97-121 months. Because

the sentence imposed upon Insaulgarat is more than twice what it

would be if the aggravated stalking offense were not a crime of

violence, Insaulgarat has clearly presented an error that affects

his substantial rights and the fairness of judicial proceedings.

Therefore, we are left to determine whether the error here was

clear.

24 offense, and he was sentenced to three years in prison. 15 Then, in

May of 1995, Insaulgarat was arrested and convicted of aggravated

assault with a firearm and false imprisonment. 16

It is undisputed that Insaulgarat had at least one prior

conviction which was a cri me of violence (the 1995 aggravated

assault). Therefore, the focus is now on whether the aggravated

stalking conviction was also clearly 17 not a crime of violence. The

aforementioned facts as set forth in the PSR indicate that the25

aggravate d stalking offense did indeed involve physical injury.

However, pursuant to section 4B1.2(a), the question here is whether

the Florida statute for aggravated stalking requires the use, or

threatened or attempted use, of force, or whether the conduct

alleged in the indictment presents a serious potential risk of

physical injury.

The Florida aggravated stalking statute prohibits:

“ Any pe r son who

, after an injunction for protection

against repeat violence pur suant to § 784.046, or an

injunction for protection against domestic violence,

pursuant to § 741.30

, or after any other court-imposed

prohibition of conduct toward the subject person or that

person’s property, knowingly, willfully, maliciously, and

repeatedly follows or harasses another person commits the

offense of a ggravated stalking , a felony of the third

degree

. . .” Fla. Stat. Ann. § 784.048(4) (1993)

(emphasis added).

Florida co urts have interpreted this statute such that the

elements of aggravated stalking are “knowledge of an injunction and

knowingly, willfully, maliciously, and repeatedly following or

harassing the beneficiary of the injunction.” S ee State v.

Johnson

, 676 So.2d 408, 411 (Fla. 1996). In Florida, harassment is

defined as “engag[ing] in a course of conduct directed at a

specific person that causes substantial emotional distress in such

person . . .” Fla. Stat. Ann. § 784.048(1)(a). On its face, the

statute, and in turn the e lements of the offense, do not require

any use, or threatened or attempted use, of physical force.

We must therefore look to the indictment to determine whether

the crime charged presents a serious potential risk of physical18 While § 2L1.2 uses the same definition for crime of

violence as § 4B1.2(a), under § 4B1.2 a court may not only look

to the elements of the crime, but also to the charged conduct in

the indictment to determine if the conduct charged by its nature

presented a serious potential risk of physical injury.

26 injury to a person. The term “domestic violence,” as it is used in

the Florida statute, is defined as “any a ssault, battery, sexual

assault, sexual battery, or any criminal offense resulting in

physical injury or death of one family or household member by

another who is or was residing in the same single dwelling unit.”

§ 741.30(1)(a) (1993).

Insaulgarat’s indictment count for aggravated stalking stated:

“LUIS ENRIQUE INSAULGARAT, on or about JANUARY 31, 1993

, in the County and State aforesaid, d id unlawfully and

feloniously commit aggravated stalking upon [SN] by

knowingly, willfully, maliciously, and repeatedly

following or harassing [SN] after the entry against the

defendant of: AN INJUNCTION FOR PROTECTION AGAINST

DOMESTIC VIOLENCE PURSUANT TO 741. 3 0 Fla. Stat., in

violation of 84.048(4) Fla. Stat., contrary to the form

of the Statute in such cases made and provided, and

against the peace and dignity of the State of Florida.

(emphasis added).

In United States v. Espinoza

, No. 02-51326 at 3-4 (5th Cir.

May 8, 2003) (unpublished), this Court held that under plain error

review, a convic tion under Colorado’s stalking statute was not a

crime of violence under U.S.S.G. § 2L1.2. 18 Although the Colorado

statute was for stalking, not aggravated stalking, a person commits

the Colorado offense if he “[r]epeatedly follows, approaches,

contacts, places under surveillance, or makes any form of

communication with another person

. . . in a manner that w ould19 But see U.S. v. Bassham , 162 F.3d 1165 (table) (8th Cir.

1998) (Holding, in an unpublished, table opinion that the

“district court correctly found that Bassham's earlier

convictions for attempted burglary and stalking were crimes of

violence for career offender sentencing under the guidelines.”)

27 cause a reasonable person to suffer serious emotional distress and

does cause that person

. . . to suffer serious emotional distress.”

Colo. Rev. Stat. § 18-9-111(4)(b)(III) (2003). In that case the

government had conceded that the defendant’s stalking offense did

not include an element that required proof of use, attempted use,

or threatened use of physical force. Therefore, this Court

determined that the defendant’s stalking conviction did not meet

the definition of a crime of violence.

It appears that the only other court to have addressed the

issue of whether a stalking offense is a crime of violence is the

Ninth Circui t. 1 9 In U nited States v. Jones

, 231 F.3d 508, 519-20

(9th Cir. 2000), the court analyzed the C alifornia stalking

statute, which states that “any person who willfully, maliciously,

and repeatedly follows or harasses another person and who makes a

credible threat with the intent to place that person in reasonable

fear for his or her safety, or the safety of his or her immediate

family, is guilty” of stalking. Cal. Penal Code § 646.9(a). In

that case, the appellant argued that the element of “threat to

safety” did not necessarily involve a threat of physical force as

is required under section 4B1.2(a)(1). The district court

disagreed, but after the defendant had been sentenced, the28

California Court of Appeal refused to interpret “safety” to mean

physical safety only. Therefore, the Ninth Circuit vacated the

sentence, because on its face the statute was not limited to

physical injury, and therefore was not a crime of violence. J ones

,

231 F.3d at 519-20.

A difference between Insaulgarat’s aggravated stalking offense

and those in J ones and Espinoza is that Insaulgarat’s indictment

specifically alleged that an injunction had been previously issued

against him under the domestic violence law. Here, the crime for

which Insaulgarat was convicted resulted from following or

h arassing the victim with the knowledge that there was an

outstanding injunction against him for her protection. The actus

reus of this crime was the following or harassing. The issuance of

an injunction, even one for domestic violence, is a civil matter.

Here, the face of the indictment does allege th at SN was the

beneficiary of the injunction against Insaulgarat and the victim of

the aggravated stal king. However, to convict for aggravated

stalking, the jury in this case only needed to fi nd that an

injunction to protect SN was outstanding against Insaulgarat, not

that the victim was in fact ever threatened or in danger. So long

as there was doc umentation that a judge in a civil case had

previously entered such an injunction, that element of the crime of

aggravated stalking was met. To convict for aggravated stalking,

it does not matter whether that injunction had been properly20 Although we do in fact have information concerning the

circumstances underlying the indictment in the case sub judice

, because those circumstances are not alleged on the face of the

indictment, and rather, the indictment merely tracks the language

of the aggravated stalking statute, we must assume the least

culpable conduct consistent with the wording of the statute and

the indictment. In other words, we assume the least culpable

conduct which the jury was required to find in order to convict

under the statute and indictment.

29 issued, and it does not matter whether the injunction was violated;

it matters only that the injunction existed.

The government asserts that because an injunction for domestic

violence had been previously issued, it necessarily follows that

the person being stalked has a reasonable fear that he or she will

be a victim, as he or she likely was before, and the stalking

presents risk of harm to that person by its nature. However, there

are forms of harassment that necessarily do not by their nature

involve conduct that presents a serious risk of physical harm. For

example, harassment could be mere repetitive phone calls or suicide

threats, and when an indictment is silent as to the offender’s

actual conduct, as it is here, we proceed under the assumption that

his conduct constituted the least culpable act satisfying the count

of conviction. 20 H ouston

, 364 F.3d at 246. The existence of a

previous injunction against domestic violence does not turn these

acts of harassment into conduct that necessarily involves serious

risk of injury.

Therefore, though we are permitted to look to the underlying

charging document, it does not matter for our purposes here today30

whether the definition of “domestic violence” itself includes as a

requirement the potential risk of physica l injury, or whether SN

was in fact a prior victim of domestic violence at the hands of

Insaulgarat. On its face, the aggravated stalking statute can be

violated without the use or threatened use of physical force, and

the additional information provided in the aggravated stalking

indictment about Insaulgarat’s underlying injunction does not

allege conduct which, by its nature, poses a serious potential risk

of physical injury.

We hold that Insaulgarat’s 1993 aggravated stalking conviction

(which is not one of the named offenses in section 4B1.2) does not

have as one of its elements the use, attempted use, or threatened

use of physical force, and that the conduct set for th in the

relevant count of the indictment by its nature does not involve a

serious potential risk of physical injury to another. This

conclusion clearly and plainly follows from the terms of section

4B1.2(a), the wording of the Fl orida statute and the indictment,

and our jurisprudence construing section 4B1.2. Therefore, it was

plain error to sentence Insaulgarat as a career offender, because

he did not have two prior felony convictions of either a crime of

violence or a controlled substance offense.

Conclusion

For the foregoing reasons, Insaulgarat’s conviction is

affirmed but his sentence is vacated and the cause is remanded for31

resentencing consistent herewith.

CONVICTION AFFIRMED;

SENTENCE VACATED, and cause

remanded for RESENTENCING.