IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51265

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

JIMY ISAIAS SALGADO-PALMA,

Defendant – Appellant 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:12-CR-301-4

Before JOLLY, HIGGINBOTHAM and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jimy Isaias Salgado-Palma was convicted by a jury of one count of aiding 

and abetting the importation of more than 50 but less than 100 kilograms of 

marijuana and one count of aiding and abetting the possession of more than 50 

but less than 100 kilograms of marijuana with the intent to distribute. He was 

sentenced to 41 months of imprisonment and three years of non-reporting 

supervised release. At his trial, the district court permitted two of his three 

co-defendants to make a blanket invocation of their Fifth Amendment right

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2014

Lyle W. Cayce

Clerk

 

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against self-incrimination, while his third co-defendant was not questioned. 

Salgado appeals, contending the district court failed to undertake a sufficient 

inquiry into the applicability and scope of the privilege before permitting the 

blanket invocation. Without vacating Salgado’s conviction, we REMAND this 

case and order the district court to hold a hearing analyzing the two codefendants’ invocation of the Fifth Amendment privilege for the purposes of 

both analyzing the scope of their invocations and determining whether the 

district court’s prior ruling on these invocations prejudiced the defendant. 

Should the district court find such prejudice, it should grant Salgado a new 

trial. 

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2012, Salgado and his three co-defendants, Israel JacintoGarcia, Rene Olmos-Fierro, and Louis Santiago Gonzalez-Barba, were arrested 

along Texas Highway 67, ten miles north of Presidio. After admitting they 

were in the United States illegally, the four men were taken to the United 

States Border Patrol station in Presidio. Shortly thereafter, two Border Patrol 

agents and Gonzalez-Barba returned to the highway, where Gonzalez-Barba 

led them to a set of foot tracks ostensibly belonging to the four men. Border 

Patrol Agent Helio Franco followed these tracks to a stash of four backpacks 

containing over 220 kilograms of marijuana, which had been secreted beneath 

some brush. Further, Agent Franco later testified that he was able to match 

these footprints to the shoes of the four men in custody. 

On June 14, each of the four men were indicted for one count of importing 

more than 50 but less than 100 kilograms of marijuana (“Count One”) and for 

one count of possessing with intent to distribute the same amount (“Count 

Two”). Jacinto-Garcia pled guilty to Count One, Olmos-Fierra and GonzalezBarba pled guilty to Count Two, while only Salgado proceeded to trial. 

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Salgado presented a theory of duress as his defense at trial. According 

to his testimony, he and his three co-defendants were forced to carry the 

backpacks containing marijuana at gunpoint by a group of drug smugglers. He 

further testified that he met his co-defendants for the first time after he had 

been kidnaped and confined for several days in a house in Ojinaga, Mexico. 

Other evidence showed that at least one of his co-defendants agreed to carry 

the drugs so to enter the United States illegally and that another may have 

done so because he had lost a load of marijuana on a previous journey. It is 

further undisputed that Salgado traveled to Ojinaga from his native Honduras 

for the purpose of seeking illegal passage to the United States.

At trial, Salgado subpoenaed each of his co-defendants to testify 

regarding the events preceding and surrounding their journey across the 

border with the marijuana. At the time of Salgado’s trial, all three had entered 

pleas as described above and were awaiting sentencing. Two of the codefendants took the stand in turn and each answered in the affirmative 

questions from their individual attorneys that they intended to invoke the 

Fifth Amendment privilege. The district court then, without further 

elaboration, concluded that neither would be required to answer any other 

questions. Salgado moved alternatively for a continuance until after the codefendants’ sentencing or a mistrial, although he never objected to the district 

court’s ruling on the co-defendants invocations of the Fifth Amendment. The 

district court denied the continuance and the mistrial.

The jury found Salgado guilty of both counts. The district court 

sentenced him to 41 months in prison and three years of non-reporting 

supervised release. On appeal, he argues only that the district court erred by 

permitting each of his co-defendants to invoke the Fifth Amendment as to any 

and all testimony without properly analyzing the applicability or scope of the 

privilege. 

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DISCUSSION

After a witness asserts a Fifth Amendment privilege not to testify, the 

trial judge should inquire “into the legitimacy and scope of the witness’s

assertion” of the privilege. United States v. Goodwin, 625 F.2d 693, 701 (5th 

Cir. 1980). “A blanket refusal to testify is unacceptable.” United States v. 

Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Instead, the district 

court should “make a particularized inquiry, deciding, in connection with each 

specific area that the questioning party wishes to explore, whether or not the 

privilege is well-founded.” Id. In a case where the district court relied only on 

the witness’ “bald assurance that he has a proper Fifth Amendment right” to 

refuse to answer any questions, we directed the district court on remand to

hold a hearing on whether the witness’ “fear of self-incrimination [was] wellfounded” and to determine “the parameters of his Fifth Amendment rights [. . 

.] in the context of the testimony [the defendant] wishe[d] to obtain from him.” 

See United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975). 

These requirements can be satisfied in different ways. We permitted a 

witness to invoke the Fifth Amendment and not be subject to further 

questioning when the district court said “it was satisfied, based on the evidence 

already presented in the case, that [the witness] had a legitimate basis for 

invoking his Fifth Amendment privilege” as to all questions. United States v. 

Mares, 402 F.3d 511, 514-15 (2005).1 The district court had already, prior to 

the assertion of the privilege, been “presented with sufficient evidence with 

which to understand the likely implications of [the witness’s] testimony and, 

thus, the scope of his privilege.” Id. at 515. Consequently, the inquiry into the 

1 Mares was pursuing an alternative perpetrator theory. The witness was, by 

implication, the alternative perpetrator. We stated that the district court “understandably 

concluded that [the witness] invoked his privilege because he had a reasonable apprehension 

of self-incrimination as a result of his responses to essentially any questions relevant” to the 

defense’s alternative perpetrator theory. See Mares, 402 F.3d at 515. 

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“legitimacy and scope” of the assertion did not require more questioning of the 

witness. If the district court fails to acquire the relevant information, “we look 

to the materiality and relevancy of the excluded testimony.” Melchor Moreno, 

536 F.2d at 1050. We concluded in Melchor Moreno that “the jury might have 

given greater credence to the [defendants’] story if [the witness’s] testimony 

had corroborated it to some extent.” Id. 

In the present case, there was no “particularized inquiry” into the areas 

that the defendant wanted to explore with the allegedly privileged witnesses. 

There also, though, was no argument by counsel that the inquiry was needed. 

Generally, we review a district court’s decision to excuse a witness from 

testifying based on the invocation of the Fifth Amendment testimonial

privilege for abuse of discretion. Mares, 402 F.3d at 514. The government 

argues for plain error review because it contends that Salgado failed to 

preserve the issue for appeal when he did not raise the need for further inquiry 

when each witness asserted a Fifth Amendment testimonial privilege. Failure 

to preserve an issue usually results in our reviewing a district court’s ruling 

only for plain error. See United States v. Cotton, 535 U.S. 625, 629 (2002). 

Salgado does not argue that he objected to the ruling on this basis. Salgado’s 

motion for a continuance or mistrial because of the assertion of the privilege 

did not inform the district court of the procedural demands he is raising now.

 We conclude that the district judge’s failure to make a full inquiry into 

the scope of the co-defendants’ invocation of the Fifth Amendment should be 

reviewed for plain error. We acknowledge that defense counsel in the early 

precedents such as Goodwin and Melchor Moreno also did not make objections 

based on the need for a more searching inquiry. Those decisions, though, were 

explaining new procedures to be followed when the privilege was asserted. 

Over thirty years later, with the procedures well-established, counsel must 

alert the district court to the requirements in order to preserve the error.

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Here, the district court called two co-defendants to the stand, permitted 

each witness’s attorney to question him about whether he intended to invoke 

the Fifth Amendment, and, upon an answer in the affirmative, determined 

that the witness would not be required to answer any further questions. The 

only explanation the district court gave was that “all three of these codefendants pled guilty to one count, so they still have liability under the other 

count . . . [and] until they are sentenced, they still have their . . . Fifth 

Amendment right.” There was no effort to explore the scope of the privilege. 

We held in Mares that a district court might have sufficient evidence from 

before the invocation of the privilege to demonstrate that a witness would

incriminate himself as to any testimony relevant to the proceedings. Mares, 

402 F.3d at 514-15. We do not discern similar record support for a blanket 

privilege here.

During the proceedings in which he called the two co-defendants, 

Salgado’s counsel proffered that he “would have expected them to testify . . . 

that they did not know each other” and that when they were first arrested they 

“made claims that they had been forced to bring . . . the marijuana” into the 

United States. Such testimony could have corroborated Salgado’s testimony 

and provided support for his theory of duress. We conclude the district court 

excluded material and relevant evidence after failing to make a “particularized 

inquiry” as to what extent that material and relevant evidence was protected 

by the Fifth Amendment privilege. Melchor Moreno, 536 F.2d at 1049. 

As discussed above, Salgado did not object to the district court’s ruling 

on the co-defendants’ blanket invocations nor did he alert the district court to 

the proper inquiry. Such long-standing precedents as Goodwin, Melchor 

Moreno, and Gomez-Rojas provided the basis for explicit objections for failure 

to follow the procedural steps those cases have mapped. Counsel should have 

pointed these out to the district court. 

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We consider whether the failure to make this inquiry was plain error, 

meaning that “there is (1) error, (2) that is plain, and (3) that affects 

substantial rights.” Mares, 402 F.3d at 520 (quotation marks omitted). If all 

three of those elements exist, we have “discretion to notice a forfeited error but 

only if (4) the error seriously affects the fairness, integrity, or public reputation 

of judicial proceedings.” Id. Here, we find the district court committed error 

by not analyzing the scope of the co-defendants’ invocations of the Fifth 

Amendment. This error was plain because our precedent clearly requires at 

least some measure of inquiry after a witness asserts the privilege. See 

Melchor Moreno, 536 F.2d at 1049. 

The next step is to determine whether this plain error affected Salgado’s 

substantial rights. That determination requires knowing what the witnesses 

would have said to a searching inquiry on the applicability and scope of the 

privilege. The best course is to remand the case to the district court in order 

to make the proper inquiry into the witnesses’s claims of privilege as it existed 

at the time the co-defendants were first called to the stand. 

We are ordering a procedure substantially the same as that followed in 

Campbell v. United States, 365 U.S. 85, 99 (1961). There, the defendant sought 

under the Jencks Act the production of an investigative report. See 18 U.S.C. 

§ 3500. The trial judge did not follow the proper procedure for analyzing the

request, depriving the defendant of the opportunity to present his defense. 

Campbell, 365 U.S. at 96-98. The Supreme Court could not identify from the 

record the extent of the prejudice to the defendant from the missing evidence. 

Id. at 98. Consequently, the Court remanded for a hearing without vacating 

the defendant’s conviction. Id. at 99. We conclude such a procedure is the best 

course here. The record does not show the entire breadth of information 

Salgado could have elicited from his co-defendants. Further, it is unclear from 

the record what information he could or could not present to the jury. 

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The district court is ordered to “supplement the record with new 

findings” if it concludes Salgado was not prejudiced. Id. On the other hand, 

should the district court determine, after inquiring into the witness’s assertion 

of privilege, that Salgado would have been entitled to present meaningful 

corroborative evidence through the witnesses and that the deprivation 

prejudiced Salgado’s substantial right to present a defense, such prejudice 

would “seriously affect[] the fairness, integrity, or public reputation of judicial 

proceedings.” Mares, 402 F.3d at 520 (quotation marks omitted). If those 

findings are made, the district court should grant a new trial. 

We close by mentioning that only Olmos-Fierro and Gonzalez-Barba took 

the stand to be questioned regarding their invocation of the Fifth Amendment. 

Co-defendant Jacinto-Garcia did not. Because Salgado did not make any effort 

to secure Jacinto-Garcia’s invocation of the privilege before the district court, 

we conclude that our order to hold a hearing does not extend to Jacinto. Our 

opinion should not be interpreted, though, to prevent the district court from 

exercising its discretion to require all three former co-defendants to be 

questioned on their invocation of the privilege.

In summary, we conclude that the district court’s failure to make any 

inquiry as to the applicability and scope of the Fifth Amendment privilege 

asserted by the co-defendant witnesses was error that was plain. To determine 

if there was prejudice, Salgado is entitled to an evidentiary hearing in which a 

proper inquiry can be made. If after such a hearing, the district court concludes 

Salgado was prejudiced by the earlier failure to undertake this inquiry, the 

district court is to grant a new trial. Otherwise, findings that there was no 

prejudice should be made. The original appellate record should be 

supplemented with all designated new materials. A briefing schedule can then 

be set on any new issues raised by the remand.

REMANDED. 

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