IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 _____________________

No. 92-1732

 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL IFY IWEGBU,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for

the Northern District of Texas

_______________________________________________________

October 21, 1993

Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit

Judges.

REAVLEY, Circuit Judge:

Defendant Daniel Iwegbu appeals his conviction for

conspiracy to import heroin. He argues that the trial court

erred in failing to conduct a hearing on the voluntariness of his

alleged confession, and in failing to give a jury instruction

regarding the alleged confession. Because the district court's

errors, if any, do not rise to the level of plain error, we

affirm.

BACKGROUND

DEA agent Tim Stover, one of the officers who arrested

Iwegbu, testified that he interviewed Iwegbu after he was taken
2

to the DEA's Dallas offices. He stated that after reading Iwegbu

his rights, Iwegbu voluntarily confessed to his involvement in a

heroin smuggling operation. According to Stover, Iwegbu made

several incriminating statements, including an admission that he

had recruited Pam Jones and Veronica Baker (both of whom

testified against him) for the operation. Stover testified that

Iwegbu admitted that a large sum of cash seized from him by U.S.

Border Patrol agents was intended as payment to Jones, Baker, and

himself, as well as to cover expenses for the operation.

After the Government called seven witnesses and rested its

case, Iwegbu testified as the sole defense witness. His defense

was that Pam Jones was a spurned lover who had set him up. On

cross-examination, he denied making inculpatory statements to

Stover, and stated that he was not read his rights until just

before he left the DEA offices, after "they [had] kept me there

for a long time." He also claimed that Stover had insulted him,

threatened him with life in prison, and "told me I should help

them, you know." Stover denied telling Iwegbu that he should

cooperate with the Government, and denied "threatening him with

life in prison or anything like that."

DISCUSSION

Iwegbu complains that his testimony put in issue the

voluntariness of his alleged confession. Under 18 U.S.C. §

3501(a)(1985):

[A confession] shall be admissible in evidence if it is

voluntarily given. Before such confession is received

in evidence, the trial judge shall, out of the presence
 

1 United States v. Espinoza-Seanez, 862 F.2d 526 (5th

Cir. 1988), holds that a failure to challenge the introduction of

a confession at trial, through an objection which makes clear

that a voluntariness hearing is being requested, precludes a

defendant from later raising on appeal the absence of a

voluntariness hearing. Id. at 535. This holding is inconsistent

with the holding in Renteria that the court should conduct a

hearing on its own motion once the issue of voluntariness is

clearly raised by the evidence. For three reasons, we are

inclined to follow Renteria. First, in this circuit, where two

panel opinions conflict, we are obliged to follow the earlier

one. Luna v. Department of Health and Human Serv., 948 F.2d 169,

172 (1991). Second, our reading of United States v. Olano, 113

S. Ct. 1770 (1993), discussed infra, is that the failure to

conduct a voluntariness hearing, as with other alleged errors by

the trial court, may be raised on appeal under FED. R. CRIM. P.

52(b) even if not brought to the attention of the district court,

but such error is only subject to review for plain error. Third,

even if we were writing on a clean slate, we would agree with

Renteria that the district court should conduct a voluntariness

hearing on its own motion once the issue is clearly raised by the

3

of the jury, determine any issue as to voluntariness. 

If the trial judge determines that the confession was

voluntarily made . . . [he] shall instruct the jury to

give such weight to the confession as the jury feels it

deserves under all the circumstances.

The statute is written in mandatory language, and therefore

once an issue arises as to the voluntariness of a confession, the

district court should conduct a voluntariness hearing and give

the instruction required by the statute. In this case, Iwegbu's

counsel did not file a motion to suppress the confession, did not

request a hearing or instruction, and did not object to Stover's

testimony. We have held however that even when no request is

made for the hearing and instruction, the district court should

comply with the statute sua sponte when the evidence clearly

raises a question of voluntariness. United States v. Renteria,

625 F.2d 1279, 1283 (5th Cir. 1980) (requiring sua sponte

hearing)1; United States v. Oakley, 827 F.2d 1023, 1025-26 (5th
evidence, since § 3501(a) is written in mandatory language and is

not conditioned on a request for a hearing by the defendant.

4

Cir. 1987) ("The trial court is also required to instruct the

jury . . . if the evidence raises a genuine question of

voluntariness, even though defendant's counsel may not have

requested such an instruction.").

We face two issues. First, did the evidence raise a genuine

issue of voluntariness, triggering the requirements of a hearing

and instruction? Second, if the issue of voluntariness was in

issue, did the district court's failure to conduct the hearing

and give the instruction sua sponte amount to reversible error? 

We pretermit the first issue and assume that a genuine issue of

voluntariness was raised. Compare Renteria, 625 F.2d at 1282-83

(finding issue raised when defendant testified that DEA agent

told him that he could spend the rest of his life in prison, that

his mother was on her deathbed, that he had ruined his mother's

life, and that if he did not confess, his mother would be

arrested for harboring a fugitive).

Assuming arguendo that the issue of voluntariness was

raised, we turn to whether the district court's failure to give

the instruction and conduct the hearing constitutes reversible

error. Since there were no requests or objections raised in the

district court regarding the confession testimony, the errors

asserted on appeal must amount to plain error under the most

recent writing of the Supreme Court. United States v. Olano, 113

S. Ct. 1770, 1776-78 (1993); FED. R. CRIM. P. 52(b). Under Olano,
 

2 Some of our prior cases suggest that certain errors by

the district court, including the failure to comply with §

3501(a), are plain error per se, but that such plain errors are

5

errors not raised in the district court are treated as forfeited

errors and are subject to the plain error standard of review,

which "in most cases . . . means that the error must have been

prejudicial: It must have affected the outcome of the District

Court proceedings." Id. at 1778. A court of appeals should

correct a plain forfeited error if failing to do so would

"seriously affect the fairness, integrity or public reputation of

judicial proceedings." Id. at 1779. See also United States v.

Birdsell, 775 F.2d 645, 653 (5th Cir. 1985) ("Plain error . . .

must be obvious, substantial, and so basic and prejudicial that

the resulting trial lacks the fundamental elements of justice."),

cert. denied, 106 S. Ct. 1979 (1986). Under the plain error

standard of review, the defendant bears the burden of persuasion

with respect to prejudice. Olano, 113 S. Ct. at 1778. We review

a claim of plain error against the entire record. United States

v. Young, 105 S. Ct. 1038, 1046 (1985). 

While Olano leaves open the possibility that some forfeited

errors can be corrected regardless of their effect on the outcome

of the trial, or that some errors should be presumed prejudicial,

113 S. Ct. at 1778, we conclude that such a special case is not

presented here. We hold that a defendant, complaining for the

first time on appeal of a failure to comply with § 3501(a), must

show that the error "had an unfair prejudicial impact on the

jury's deliberations." Young, 105 S. Ct. at 1047 n.14.2
not reversible if they are harmless. E.g., Oakley, 827 F.2d at

1026; Renteria, 625 F.2d at 1283. However, our reading of the

Supreme Court's decisions in Olano and Young, supra, is that

plain error, by definition, is "harmful" error, and that a per se

approach to harmful error should be avoided. Olano, 113 S. Ct.

at 1778 ("Normally, although perhaps not in every case, the

defendant must make a specific showing of prejudice to satisfy

the 'affecting substantial rights' prong of Rule 52(b)."); Young,

105 S. Ct. at 1047 n.14 ("A per se approach to plain-error review

is flawed. . . . [F]ederal courts have consistently interpreted

the plain-error doctrine as requiring an appellate court to find

that the claimed error not only seriously affected 'substantial

rights,' but that it had an unfair prejudicial impact on the

jury's deliberations. Only then would the court be able to

conclude that the error undermined the fairness of the trial and

contributed to a miscarriage of justice."). See also United

States v. Thetford, 676 F.2d 170, 180 n.19 (5th Cir. 1982)

("Plain error exists only if it affects substantial rights of a

party so basic that the infraction can never be treated as

harmless error."), cert. denied, 103 S. Ct. 790 (1983).

 

3 On appeal, Iwegbu does not seriously contend otherwise. 

Nowhere in his appellate briefs does he argue that a hearing

would have convinced the district court that the confession, if

any, was coerced. His "Statement of the Issue" in his opening

brief addresses only the failure to give the instruction, as do

his "Summary of the Argument" and his headings under the argument

sections of his opening brief. 

6

Applying this standard of review, we hold that the failure

to give the instruction and conduct the hearing was not plain

error. Regarding the hearing, the district court was faced with

a situation where the government witness insisted that the

confession was entirely voluntary, and the defendant insisted

that there had been no confession at all. Even if the court had

conducted a voluntariness hearing, the court would have had to

conclude that any confession given was given voluntarily. Hence,

such a hearing would not have affected the evidence presented to

the jury.3 
 

4 The jury was instructed as follows:

You are the sole judges of the credibility or

"believability" of all witnesses and the weight to be

given to their testimony. You should carefully

scrutinize all the testimony given, the circumstances

under which each witness has testified, and every

matter in evidence which tends to show whether a

witness is worthy of belief. In weighing the testimony

of a witness you should consider the relationship of

the witness to the government or to the defendant; the

witness' interest, if any, in the outcome of the case;

the witness' manner of testifying; the witness'

opportunity to observe or acquire knowledge concerning

the facts about which the witness testified; the

witness' candor, fairness and intelligence; and the

extent to which the witness has been supported or

contradicted by other believable evidence. You may, in

short, accept or reject the testimony of any witness in

whole or in part.

7

Based on all the circumstances in this case, we also

conclude that the failure to give a voluntariness instruction, if

error at all, does not constitute plain error. First, the

district court did give a general instruction on the credibility

of witnesses.4 A voluntariness instruction focuses the jury on

the need to exercise extra caution and attention when considering

confession testimony. We agree with Iwegbu that a general

credibility instruction does not satisfy the requirements of §

3501(a). See United States v. McLernon, 746 F.2d 1098, 1120 (6th

Cir. 1984). However, in our view the general instruction does

limit the possible prejudice in failing to give the voluntariness

instruction, and hence informs our analysis of whether the plain

error standard is met. See United States v. Hoac, 990 F.2d 1099,

1109-10 (9th Cir. 1993) (general credibility instruction
8

supported conclusion that failure to give voluntariness

instruction was not plain error). 

Second, Iwegbu denied making any incriminating statements,

and hence shifted the focus of the trial away from the issue of

voluntariness and toward the issue of whether the statements were

made at all. Again, we agree with Iwegbu that denying that a

confession was made does not render § 3501(a) inapplicable. 

United States v. Barry, 518 F.2d 342, 346-47 (2d Cir. 1975)

("[Section 3501] is not qualified . . . by a defendant's denial

that he has ever made any inculpatory statements. . . . A

defendant may properly claim that he made no incriminating

statements and that any statements which the jury might find that

he made were coerced."). However, this testimony limited any

possible prejudice resulting from the failure to give the

instruction, by shifting the emphasis of the trial away from the

voluntariness issue. Cf. United States v. Gonzalez, 548 F.2d

1185, 1190 (5th Cir. 1977) ("Furthermore, there does seem

something inconsistent about appellant complaining he was never

given a hearing on the issue of Miranda warnings or voluntariness

of his confession in light of his testimony that he never made a

confession!").

Third, the confession testimony was strongly corroborated by

other evidence presented at trial, including the testimony of

three other participants in the smuggling scheme and an

undercover agent. The confession testimony was cumulative of

other evidence on which a reasonable jury easily could have
9

convicted Iwegbu. Iwegbu's defense -- that he was set up by Pam

Jones because he ended their affair -- was directly contradicted

by Jones, who denied the existence of the affair. Iwegbu's trial

testimony regarding the seized cash was also contradicted by

several witnesses.

Fourth, in the context of the whole district court

proceeding, the issue of voluntariness was downplayed to the

point that it was a minor issue. This issue was never raised by

either side prior to trial, during opening or closing statements,

or during the charge conference. Iwegbu concedes that the

district court had no way of knowing that there was even an issue

of voluntariness until Iwegbu testified. Counsel for Iwegbu made

no mention of Stover's confession testimony during his closing

argument. Cf. United States v. Fuentes, 563 F.2d 527, 535 (2d

Cir.) (finding issue of voluntariness not raised, in part because

issue was not mentioned in defense counsel's opening and closing

arguments), cert. denied, 98 S. Ct. 491 (1977).

 We conclude that Iwegbu has not met his burden of showing

prejudice.

AFFIRMED.