* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50659

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ACENCION GARCIA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(96-CR-127-2)

July 21, 1998

Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.

PER CURIAM: *

In this direct criminal appeal, Defendant-Appellant Acencion

Garcia asks us to reverse his conviction by a jury of conspiracy to

possess with intent to distribute marijuana, conspiracy to import

marijuana, possession with intent to distrib ute marijuana, and

importation of marijuana, in violation of 21 U.S.C. §§ 841, 846,

952 and 963. Garcia assigns as reversible error (1) insufficiency

of evidence to prove his knowing possession of marijuana in the2

back of a truck that he drove, and (2) three rulings by the

district court: (a) excluding evidence or explanation to the jury

of the absence or flight of Garcia’s co-defendants, (b) denial of

Garcia’s requests for severance; and (c) refusal to exclude

impeachment testimony by an agent of the United States Cu stom

Service (the Customs Service) about a post-in dictment discussion

with Garcia while he was incarcerated pending trial. Additionally,

Garcia complains that, even if none of those errors, standing

alone, are held to justify reversal, their cumulative effect does.

Concluding that, separately or in the aggregate, the errors alleged

by Garcia fail to mandate reversal, we affirm.

We have carefully reviewed the record of Garcia’s trial,

cons idered the facts revealed thereby and reiterated in the

appellate bri efs of counsel, analyzed the legal arguments of

counsel as set forth in their respective briefs and at oral

argument to this panel, and indep endently researched the law

applicable to the issues raised by Garcia. We speculate that it

will come as no surprise to defense counsel who vigorously argued

Garcia’s case on appeal that we now conclude that (1) the evidence

and inferences therefrom when viewed in the light most favorable to

the jury verdict are more than sufficient to support a finding that

Garcia possessed th e requisite knowledge of the presence of

marijuana in the truck he drove, (2) no plain error resulted from

the exclusion of evidence or explanation of Garcia’s co-defendants’

absences at trial, and (3) the district court did not abuse its

d iscretion in denying severance of trial as requested by Garc ia.3

And, as that leaves only the evidentiar y ruling on the

excludability of testimony by the Customs Service agent regarding

his jailhouse discussions with Garcia, no error remains with which

that ruling can be combined to constitute cumulative error. Under

these circumstances, then, we need not and therefore do not write

further except in connection with the evidentiary ruling on the

availability to the government of the Customs Service agent’s

testimony to impeach Garcia, if he were to take the s tand and i f

his testimony were to prove inconsistent with t he statements he

made to the agent.

Garcia filed a motion to suppress the statements he made to

Special Agent Alfredo Delgado of the Customs Service while Garcia

was incarcerated post-indictment. He grounded his suppression

motion in the so-called “plea statement rules,” i.e., Fed. R. Evid.

410(4) and Fed. R. Crim. P. 11(e)(6), insisting that the specter of

the government’s using Delgado’s testimony for impeachment purposes

chilled Garcia’s right and ability fully to present a complete

defense within the meaning of the Due Process Clause. In support

of suppression, Garcia’s trial attorney argued that (1) counsel had

been impermissibly deprived of the information regarding Garcia’s

discussio n with Delgado, (2) given that this discussion was held

after Garcia had invoked his right to counsel and in fact was being

represented, he could not waive his rights under the plea statement

rules without, as a minimum, discussing the matter with his

attorney, an d (3) Garcia’s original counsel never granted

permission for Delgado to meet with Garcia. The government’s1 United States v. Carrillo , 20 F.3d 617, 619 (5th Cir.),

cert. denied , 513 U.S. 901 (1994).

2 See Fed. R. Crim. P. 11(h); Fed. R. Evid. 103(a).

4 opposite position was that Garcia’s statement could be used to

impeach him if he took the stand and testified inconsistently with

his earlier statements because they had not been made in the course

of plea bargaining and, in additi on, he had knowingly waived

presence of c ounsel and freely and voluntarily initiated and

participated in the debriefing.

Following the suppression hearing, the district court ruled

against Garcia, specifying that Delgado would be permitted to

testify but only as an impeachment witness and then only if

Garcia’s trial testimony should conflict with his June 1996

statements to Delgado. For whatever reasons, Garcia did not

testify.

On appeal, the gov ernment supports the district court’s

ruling, contending that the statements at issue were not made in

the course of plea negotiations, so that the plea statement rules

are inapplicable; and, alternatively, that even if we conclude that

p lea negotiations had commenced, Garcia effectively waived his

protections under those rules.

Evidentiary rulings in a criminal case are reviewed at a

“heightened” abuse of discretion level. 1 Moreover, even if, under

such a stringent standard of review, we were to conclude that the

trial court’s ruling was erroneous, the harmless-error analysis is

still applicable. 25

At the suppression hearing, which was conducted during a

recess of the trial, Delgado testified that United States

Magistrate Judge Alia Moses Ludlum

—— then an Assistant U. S.

Attorney (AUSA) —— had authorized him to speak with the

incarcerated Garcia, out of the presence of counsel. Delgado

further testified that Garcia had initiated the process when he

spoke to a detention center officer concerning a desire to converse

with an agent of the Drug Enforcement Administration (DEA) about

drug smuggling. This prompted the detention center to contact

Delgado. When he learned that Garcia had already been indicted and

was represented by counsel, however, Delgado ca l led then-AUSA

Ludlum and told her that Garcia wanted to provide information about

a load of marijuana that was expected to be moved the next day, and

that, although Delgado was represented by counsel, he did not want

his attorney present. Given the imminence of the drug transaction

about which Garcia wished to talk, Ludlum told Delgado to get the

information f rom Garcia but not to discuss Garcia’s criminal

charges with him. (Delgado testified unequivocally that he

complied with this directive.)

According to Delgado, he then met with Garcia, explaining at

the outse t that Garcia had a right to have his attorney present.

Delgado further inf ormed Garcia that his attorney was being

contacted by Ludl um, who would explain the situation to counsel.

Garcia responded that he was not pleased with his attorney and that

he wanted to help himself. Garcia then disclosed that he was

involved in a marijuana-trafficking organization operating between3 This letter was prepared with blanks for signatures by

Garcia and his counsel, but the record copy reflects no signatures

of either.

6 Eagle Pass and Dallas that moved 1000-pound loads twice a week; and

he told Delgado the location of stash houses in both cities.

According to Delgado, neither he nor Garcia discussed the charges

for which Garcia was being detain ed. Delgado volunteered to

Garcia that the information he had supplied would be considered by

the government as constituting cooperation, a fact that we note

could prove beneficial to Garcia if he were to be sentenced

following a trial and conviction, regardless of whether he ever

entered into plea discussions or in fact pleaded guilty.

AUSA Bill Baumann testified at the suppression h earing,

informing the court that Ludlum told him that she had obtained the

approval of Garcia’s counsel for agents to speak with Garcia

without counsel being present. Additionally, Ludlum had written to

Garcia’s coun sel, explaining the “ground rules” for Garcia’s

debriefing by Delgado and specifying that, although G arcia’s

statements would not be used in the government’s case- in-chief,

they could be used to impeach Garcia if he should testify

inconsistently with his statements to Delgado. 3

Garcia met with Delgado in June 1996. In September, Garcia’s

attorney moved to suppress any statement, admission, or confession

made by Garcia after his arrest, but did not mention Delgado’s June

debriefing of Garcia. Then, in January 1997, Garcia’s lawyer was

g ranted permission to withdraw and a successor attorney was

appointed. Garcia’s new lawyer did not learn of the June 19964 U nited States v. Yeagin

, 927 F.2d 798, 800 (5th Cir. 1991).

5 United State v. Mezzanatto , 513 U.S. 196, 200 (1995).

6 2 Jack B. Weinst ein & Margaret A. Berger, Weinstein’s

Federal Evidence § 410.09[3](2d ed. 1998); s ee United States v.

Brooks , 670 F.2d 625, 628 (5th Cir. 1982).

7 At the suppression hearing, Garcia failed to proffer what

his testimony would be if he elected to testify at trial. He now

asserts that his failure to do so does not preclude our review of

the issue. The government makes no reference to Garcia’s failure

to testify at trial or of the absence of proffered testimony at the

7 debriefing by Delgado until three days before Garcia’s trial.

As the district court fai led to articulate findings of fact

regarding its suppression r uling, we “independently review the

record to determine whether any reasonable view of the evidence

supports admissibility.” 4 The plea statement provisions of Fed. R.

Evid. 410 and Fed. R. Crim. P. 11(e)(6) “are substantively

identical.” 5 Although the rules indicate that, for the plea

statement protections to apply, the statements at issue must be

made in the course of negotiations to “an attorney for the

government,” principles of agency law may create circumstances in

which statements made to law enforcement agents in the course of

plea negotiations are protected. 6 As noted, Garcia’s debriefing

statements were made to Delgado who testified that he obtained

advance authorization to speak with Garcia from Ludlum, the thenAUSA assigned to the case at the time.

Garcia avers that there is no evidence that he waived his plea

statement rights under the rules. He insists therefore that his

statements to Delgado should have been ruled inadmissible, even as

impeachment evidence, had he chosen to testify on his own behalf. 7suppression hearing . From the opening statement in defense

counsel’s appellate brief, howe ver, it appears that Garcia would

have testified that he was an unwitting friend helping someone to

move furniture

—— testimony that would conflict with the statements

he made to Delgado.

8 Mazzanatto , 513 U.S. at 210.

9 S ee id. ; United States v. Maldonado

, 38 F.3d 936, 942 -43

(7th Cir. 1994), cert. denied , 516 U.S. 876 (1995).

8 The Ludlum letter, as noted, expressed the condition that the

government could use Garcia’s statements as impeachment evidence if

he should testify inconsistently with hi s earlier statements.

Again, the copy of the letter filed in the record does not contain

the signatures of Garcia or his counsel; however, AUSA Baumann

stated at the suppression hearing that Ludlum told him that she had

cleared with Garcia’s counsel in Dal las that agents could speak

with Garcia without his lawyer being present. Delgado testified

that he informed Garcia of the statement by Ludlum that she would

contact Garcia’s lawyer to explain the situation.

“[A]bsent some affirmative indication that the agreement was

enter ed into unknowingly or involuntarily, an agreement to waive

the exclusionary provisions of the plea-s tatement Rules is valid

and enforceable.” 8 When signed by counsel and defendant, a letter

such as the one sent by Ludlum to Garcia’s defense counsel suffices

to waive the defendant’s rights to the protections offered by the

plea statement rules. 9 We have not been called on to apply

Mazzanatto to a situation in which a copy of the authorization

letter filed in evidence did not reflect whether it had been signed1 0 S ee United States v. Tamez-Gonzalez

, No. 95-50460, slip op.

at 4-5 (5th Cir. Nov. 26, 1996) (unpublished).

11 2 Weinstein, supra note 6, § 410.11 (footnote omitted).

12 United States v. Robertson

, 582 F.2d 1356, 1365 (5th Cir.

1978) (en banc).

13 Id. at 1366.

9 by the defendant or counsel or both. 10 Signing such a letter is not

the exclusive method by which a defendant can waive the protections

of the plea statement rules; however, without some kind of valid

waiver, “[s]tatements made by a defendant in connection with a plea

or an offer to plead

. . . may not be used substantively or for

impeachment in any civil or criminal proceeding against the person

who made the plea or offer,” exce pt for statements used in a

subsequent prosecution for perjury. 11

“[N]ot every discussion between an accused and agents for the

government is a plea negotiation.” 12 Statements made by a defendant

other than in the course of plea negotiations, however, do not come

under the ambit of the plea statement rules.

To determine whether a discussion should be characterized

as a plea negotiation and as inadmissible, the trial

court should carefully consider the totalit y of the

circumstances. Thus, each case must turn on its own

facts.

. . . .

The trial court must apply a two-tiered analysis and

determine, first, whether the accused exhibited an actual

subjective expectation to negotiate a plea at the time of

the discussion, and second, whether the accused’s

expectation was reasonable given th e totality of the

objective circumstances. 13

Garcia did not testify at the suppression hearing, and Delgado14 2 Weinstein, supra note 6, § 410.09[5].

10 testified that he was unfamiliar with the Ludlum letter. That

letter refers to Rule 11, but it also refers to § 1B1.8 of the

Sentencing Guidelines, the provision covering the use of

information provided by a defenda nt who agrees to cooperate.

Delgado was informed by Garcia that he was unhappy with his

attorney and wanted to help himself. Delgado testified at the

suppression hearing that he strictly followed Ludlum’s

instructions? not to discuss Garcia’s pending federal charges with

him. True, the debriefing between Delgado and Garcia took place

after Garcia was indicted, after he exercised his constitutional

right to counsel, and after he obtained counsel. And it is also

true that post-indictment discus sions carry “a strong inference

that admissio ns were made in the course of plea negotiations.” 1 4

Nevertheless, having consider e d both the contents of and

omissions from the record of the suppression hearing and all other

relevant facts and circumstances, as well as the inferences to be

drawn therefrom, we conclude that a reasonable view of the district

court’s suppression ruling is that it includes the implicit finding

by the district court that the meeting between Garcia and Delgado

did not occur in a plea negotiation s etting. Neither Garcia nor

the government cites to Robertson and neither argues whether or not

Garcia held the subjective belief that plea negotiations were

proceeding or, if he did, whether such a belief was reasonable

under the circumstances. There is no record evidence contradicting

the suppression testimony —— some of which is admittedly hearsay11

but was not objected to

—— to the effect that the AUSA in charge of

Garcia’s case at the time obtained his counsel’s oral consent for

Garcia to meet with Delgado out of the presence of counsel.

Neither is there evidence contradicting the testimony that Garcia

was dissatisfied with counsel, desired to proceed with self-help,

and never discussed his own case with Delgado; nor is there

anything in the suppression heari ng record to contradict the

testimony that Garcia initiated the whole process without ever

adverting to a plea bargain, e ither personally or through his

counsel.

The suppression record also fails to reflec t that the

Rober tson two-tiered analysis was applied by the district court.

Moreover, we would not normally expect to hear that a defense

attorney had consented to his indicted and incarcerated client’s

meeting with a government agent outside the prese nce of counsel,

even when the government has promised that the charges pending

against the defendant would not be discussed.

We neverthe less conclude that here the totality of the

circumstances weigh more heavily in fav or of a conclusion that,

irrespective of any silent hopes that Garcia may have harbored for

the ultimate help he might achieve for himself, the dialogue he

initiated and participated in with Delgado was at most preparatory

to any plea negotiations that he might have planned to initiate in

the future. As such, the plea statement rules were not applicable

and the district court did not abuse its discretion in refusing to

prohibit the governmen t’s use of testimony by Delgado for the12

limited purpose of impeachment when and if Garcia should take the

stand and give testimony conflicting wit h the statements he had

made to Delgado.

AFFIRMED.