IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 93-2600

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERT MARTINEZ MUSQUIZ and

ROBERT MARTINEZ GATEWOOD,

Defendants-Appellants.

 

Appeal from the United States District Court

for the Southern District of Texas

 

(February 10, 1995)

Before POLITZ, Chief Judge, and HIGGINBOTHAM and DeMOSS, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Robert Martinez Gatewood and Gilbert Martinez Musquiz appeal

their criminal convictions on cocaine charges, urging that their

conduct was misread--they were not dealing but trying to collect

DEA reward money by turning in drug dealers. The main issue now is

whether the trial court should have allowed the prosecutor to

cross-examine Musquiz about why he failed to offer this explanation

and instead remained silent after he was arrested and before

receiving Miranda warnings. We hold that the questions were

permissible, reject other contentions, and affirm.
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I.

In the spring of 1990, Robert Gatewood, a police officer in

Houston, asked retired officer James Montero if he would like to

make money by stealing from drug dealers. Gatewood told Montero

that during a 1988 homicide investigation of some Colombians, he

and another officer had found and shared between $200,000 and

$300,000. Montero replied that he wanted no part in such a scheme.

The Houston Police Department suspended Gatewood in November

1990. Beginning in January 1991, Gatewood repeatedly asked his

friend, Ana Maria Jaramillo, to find out from her imprisoned son

the names of Colombian drug dealers. Gatewood explained that he

and his confederates could steal drugs and money by posing as

police officers, and that the Colombians would be unable to report

their losses to the police.

Undercover DEA agents Frank "Mike" McDaniel and Jerry Garner

arranged a meeting for September 25, 1991, at which a man named

Carlos was to deliver 100 kilograms of cocaine to a man named

Pacho. Carlos was a confidential DEA informant. Mario Jaramillo

was to supply the cocaine to Carlos, and Ana Maria acted as Mario's

agent. McDaniel and Garner told Carlos and Ana Maria about the

meeting, and Ana Maria told Gatewood and Mario. Ana Maria did not

know where the meeting would be, so she told Gatewood to follow

Carlos to the meeting.

On September 25, Carlos and Pacho met at a TGI Friday's

restaurant in Houston. Narcotics task force agents were stationed

outside. Surveillance agents saw Gatewood follow Carlos to the
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restaurant and wait outside in his Pontiac Grand Am while watching

the restaurant. Gatewood spoke on a cellular phone for a while.

Steve Garza, a former Houston police officer, pulled up in a

Chevrolet Caprice next to the Grand Am and spoke with Gatewood.

Then Gilbert Musquiz, Gatewood's cousin, walked up to the Grand Am

and spoke with Garza and Gatewood. The three men drove around the

restaurant for a while and watched it, following Pacho when he

drove off in his Mazda.

Later that same day, McDaniel and Garner went to a Holiday Inn

to arrange for the drug delivery. They spotted Garza's Chevrolet

Caprice at the parking lot and so called off the delivery.

McDaniel told Ana Maria that he had spotted the Caprice at the

Holiday Inn, whereupon Ana Maria called Gatewood to relay this

information. The Caprice then left the lot.

On October 7, McDaniel and Garner introduced Ana Maria to

undercover agent Robert Boudreau, who arranged to deliver cocaine

to her the next day. On October 8, Ana Maria and another man met

Boudreau, and they were arrested. Ana Maria agreed to cooperate

with the authorities. On October 9, Ana Maria called Gatewood and

told him that some Colombians had bought 114 kilograms of cocaine.

She said that they had stashed it in their Chevrolet Suburban truck

with Mississippi plates in the parking lot of the Adam's Mark Hotel

in Houston. Garza and Musquiz soon drove up to the Adam's Mark

Hotel in Garza's Caprice, and Gatewood drove up in his Grand Am.

Gatewood called Ana Maria from his cellular phone several times,

telling her: "We're going to go after it." An undercover agent
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left the hotel, put a suitcase in the Suburban's trunk, drove to a

nearby shopping mall, put the keys inside the truck's gas cap, and

entered a nearby restaurant. Garza, Musquiz, and Gatewood followed

the Suburban to the mall and watched it. Gatewood repeatedly

telephoned Ana Maria, and she told him that the keys had been left

in the ashtray in the past. Musquiz got into Gatewood's Grand Am.

Gatewood and Musquiz pulled up alongside the Suburban. Musquiz was

wearing a police raid jacket and black leather gloves and carrying

a security guard's badge, even though it was a hot day and Musquiz

had never been a police officer or security guard. After almost

two hours of surveillance, Musquiz got out of the Grand Am and

walked around the Suburban, checking the tops of the tires and

pulling on door handles. Agents then arrested Gatewood and

Musquiz. Garza fled but turned himself in one week later.

Officers found a loaded revolver under Gatewood's driver's seat.

A federal jury convicted Garza, Gatewood, and Musquiz of

conspiracy to possess cocaine with intent to distribute. Gatewood

was also convicted of using a communication facility in the course

of committing a drug trafficking offense. All three defendants

argued unsuccessfully that they were just trying to collect DEA

reward money by turning in narcotics dealers. Gatewood and Musquiz

now appeal.

II.

Defense counsel by a motion in limine asked the court to

instruct the prosecutor not to question Musquiz about his silence
5

in the interval between arrest and Miranda warnings. The trial

judge denied the motion. Musquiz testified on direct examination

that he was just trying to earn a reward for turning in drug

traffickers. The prosecutor cross-examined Musquiz about his not

offering this explanation when he was arrested. 

Musquiz relies on United States v. Henderson, 565 F.2d 900

(5th Cir. 1978). Henderson turned on the balance to be struck

between probative value and prejudice under the rules of evidence.

Henderson, a prisoner, was silent when searched for marijuana.

Miranda warnings came after the search. After Miranda warnings,

Henderson gave his explanation, the same explanation he offered at

trial. The court held it was reversible error to attack

Henderson's explanation by stressing in closing argument his

silence when confronted by officials. Id. at 905-06. The panel

concluded that the comment was highly prejudicial and lacked

significant probative value, since Henderson's silence was

consistent with his explanation at trial. Id. at 905. Concluding

that on these facts the prejudice outweighed the minimal probative

value, the panel reversed Henderson's conviction. Id. at 905-06;

see also United States v. Impson, 531 F.2d 274, 277-78 (5th Cir.

1976). Henderson and Impson, on which it relied, reflect hostility

toward prosecutorial use of a defendant's silence. That hostility

seems to have flourished against the backdrop of an expansive

vision of a defendant's rights under the Fifth Amendment, although

the opinions do not offer that explanation. Whatever the source,

it found expression both in their balancing of prejudice and
6

probative value and in the absence of deference given the trial

court's ruling. Laying aside the correctness of the appellate role

they implicitly assume, these decisions yield no ruling or holding

binding on later panels of this court. Rather, they are case

specific and fact bound. We would be consistent with Henderson and

Impson in our holding today even if the legal matrix in which the

balance is to be struck had not changed. It has. 

The Supreme Court and other courts of appeals do not, at least

now, share the Henderson panel's unwillingness to give much, if

any, weight to the probative value of a defendant's silence.

Indeed, Henderson and Impson refused to recognize the difference

between silence before a Miranda warning and silence after a

defendant has been told that he may remain silent and his silence

will not be used against him. This worked an extension of

Miranda's bite by giving silence little, if any, probative value

and blurring the distinction between silence before and silence

after a Miranda warning. 

Since Henderson, the Supreme Court, using the same framework

of probative value and prejudice, has recognized that "[s]uch

[post-arrest, pre-Miranda] silence is probative." Brecht v.

Abrahamson, 113 S. Ct. 1710, 1716 (1993). It has distinguished

post-warning silence, holding that a Miranda warning that a suspect

need not make a statement makes the use of silence both unfair and

unreliable because the warnings "induce[] silence by implicitly

assuring the defendant that his silence [will] not be used against

him." Fletcher v. Weir, 455 U.S. 603, 606 (1982) (per curiam);
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accord Anderson v. Charles, 447 U.S. 404, 407-08 (1980). Indeed,

the Court has found that pre-Miranda silence can be highly

probative precisely because it implicates no such assurances.

Fletcher, 455 U.S. at 607; Brecht, 113 S. Ct. at 1716; see also

United States v. Butler, 924 F.2d 1124, 1129 (D.C. Cir.) (holding

post-arrest, pre-Miranda silence admissible in federal trial),

cert. denied, 502 U.S. 871 (1991); United States v. Rivera, 944

F.2d 1563, 1568 (11th Cir. 1991) (same, in case where witness made

comments in prosecution's case-in-chief).

We cannot agree then with Musquiz's contention that Henderson

laid down a prophylactic ban on admission of post-arrest, preMiranda silence or that its holding rested on federal supervisory

power. The reality is that Henderson's weighing came at the high

mark of Miranda's reach, a reach later shortened by the developing

Miranda doctrine.

On these facts, a reasonable juror may have supposed that

Musquiz would have explained when confronted by the police if he

was in fact trying to assist the police in catching drug dealers.

The district court acted well within its discretion in allowing the

cross-examination. Given the deference due the trial court ruling,

we cannot conclude that the probative value of Musquiz's silence

was substantially outweighed by the danger of unfair prejudice. We

find no error in the admission of this evidence. In doing so we

announce no broad rule of evidence. The admission of evidence that

a defendant remained silent on arrest and before a Miranda warning
8

turns on fact specific weighing by the trial judge. See Fed. R.

Evid. 403.

III.

Gatewood argues that the district court should have excluded

his 1990 statements to James Montero about a plan to steal money

from drug dealers and his 1988 theft during a homicide

investigation. This evidence is relevant to Gatewood's intent,

knowledge, plan, and absence of mistake or accident. See Fed. R.

Evid. 404(b). It negates his claim that he was only trying to

catch drug dealers to earn reward money. Gatewood argues that his

actions in 1988 and statements in 1990 are too remote to shed light

on his intent in 1991. We cannot say that these events are so

remote that the evidence lacks any probative value.

At Musquiz's request, the court gave a limiting instruction

that the proof of the 1988 theft was admissible only against

Gatewood and then only on the issue of intent. Musquiz argues,

however, that the instructions on conspiracy prejudiced him because

they stated that conspiracy "is a kind of 'partnership in crime' in

which each member becomes the agent of every other member." Thus,

he claims, the jury could have used the previous theft against

Musquiz by imputing Gatewood's intent to Musquiz. Musquiz moved

for severance, but the district court denied the motion.

Defendants who are indicted together should generally be tried

together, particularly in conspiracy cases. "[A] district court

should grant a severance under Rule 14 only if there is a serious
9

risk that a joint trial would compromise a specific trial right of

one of the defendants . . . ." Zafiro v. United States, 113 S. Ct.

933, 938 (1993). We review for abuse of discretion. Here, the

district court was well within its discretion in relying on

limiting instructions. We presume that jurors follow the law.

Evidence of one defendant's past crimes "does not ordinarily

justify severance," even though it is inadmissible against a

codefendant. United States v. Rocha, 916 F.2d 219, 228 (5th Cir.

1990), cert. denied, 500 U.S. 934 (1991). The prosecutor did not

try to ascribe Gatewood's theft to Musquiz. In light of the

explicit limiting instruction, the claimed link between the

conspiracy instruction and the spillover guilt is too tenuous to

amount to a serious risk of prejudice. There was no abuse of

discretion.

IV.

Gatewood asks this court to reverse his convictions because

voir dire developed the fact that veniremember number seven had

doubts about her ability to be fair and impartial. At the close of

voir dire, Gatewood's attorney said that he would challenge this

member of the venire for cause, but then said: "Tell you what, we

will withdraw the challenge on [number seven]." Gatewood's

attorney then made four other for-cause challenges, and the judge

granted all four. Neither party challenged number seven for cause

or peremptorily, and she became the foreperson of the jury.
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By withdrawing the challenge, Gatewood waived his objection.

Waived errors are entirely unreviewable, unlike forfeited errors,

which are reviewable for plain error. United States v. Calverly,

37 F.3d 160, 162 (5th Cir. 1994) (en banc), petition for cert.

filed, -- U.S.L.W. -- (U.S. January 18, 1995) (No. 94-7792). In

any event, the error was not plain because number seven clarified

her answers and expressed a willingness to follow the law and

instructions.

V.

The district court denied access to FBI records of rewards

paid informants during 1990 and 1991. Defendants urge that this

lack of access frustrated their right to confront the witnesses

against them. Gatewood argues that this refusal impaired his

ability to cross-examine Ana Maria regarding her motives for

testifying. Musquiz argues that it impeded his defense that his

intent in helping Gatewood was to earn a reward.

In the government's case-in-chief, DEA agent McDaniel

testified that the DEA often rewarded informants based on the

number of defendants, the quantity of drugs seized, and the quality

of the case. At the close of the government's case, Musquiz

subpoenaed the DEA records. The court quashed the subpoena pending

further consideration, persuaded that amounts paid in the past were

not relevant but that DEA policy regarding payment of rewards might

be relevant. During Musquiz's case, retired DEA agent Paul Herring

testified that an informant's tip that led to seizure of 114
11

kilograms of cocaine would merit a reward of between $10,000 and

$20,000. Musquiz renewed his request for records, and the

government stated that it was willing to stipulate that rewards had

been paid. After reviewing the records in camera, the court denied

the motion because the records were irrelevant and uncontradicted

testimony had already established the size of DEA rewards. Because

the records would have been duplicative and at best tangentially

relevant, the district court did not abuse its discretion.

Gatewood argues that he needed the DEA reports to contradict

Ana Maria's testimony that she had never been a government

informant and to prove her ulterior financial motive for testifying

against Gatewood. Before trial, however, the government gave the

defense an informant payment sheet showing payments it had made to

Ana Maria to reimburse her expenses. McDaniel testified that the

DEA had not paid her a reward but had reimbursed her expenses and

made monthly subsistence payments to her during the investigation.

He also testified that she had not been paid anything for this

case, because there had been no expenses, and that she was still on

the DEA payroll. DEA agent Boudreau testified that the DEA had

paid Ana Maria $67,174.93 for assistance in investigating

Colombians, of which $25,957.46 was subsistence payments and the

rest expense reimbursements. Boudreau also testified that Ana

Maria had received no reward. The district court then denied the

request for the underlying documents and reviewed the records in

camera, satisfying itself that the defense had not been deprived of

any significant information. The prosecutor tendered copies of the
12

DEA forms to the defense, who used these forms in cross-examining

Ana Maria. The defense attorneys questioned her at length about

DEA payments, the terms of her plea agreement, and her reasons for

cooperating with the government. In short, Gatewood had enough

information for cross-examination.

VI.

Gatewood makes four challenges to the district court's

application of the Sentencing Guidelines. First, he contests the

application of a two-point sentencing enhancement for use of a gun

during a drug offense under U.S.S.G. § 2D1.1(b)(1). He argues that

because the gun was found under the seat of his car, it was not

involved in this offense. Application Note 3 to that Guideline

states: "The adjustment should be applied if the weapon was

present, unless it is clearly improbable that the weapon was

connected with the offense." The district court's factual finding

that the weapon was connected with the offense was not clearly

erroneous.

Second, Gatewood argues that the district court should not

have enhanced his sentence by two levels for his leadership role in

the crime under U.S.S.G. § 3B1.1(c). But it was Gatewood's idea to

steal from drug dealers. Gatewood asked Ana Maria to find

traffickers. Gatewood recruited Garza and Musquiz. Gatewood made

calls to Ana Maria on his cellular phone, finding out the minutiae

about the Suburban and its drug contents. Gatewood told Garza and

Musquiz to come to the Adam's Mark Hotel, and he directed the
13

surveillance. Gatewood ordered Musquiz to go examine the Suburban.

Even though the three men planned to split the proceeds equally,

the finding of a leadership role was not clearly erroneous.

Third, Gatewood claims that he deserved a downward departure

under U.S.S.G. § 5K2.0 because the government manipulated drug

quantity, greatly overstating his criminal involvement. We find no

impermissible manipulation. When told of the 114 kilograms of

cocaine, Gatewood rushed to the Adam's Mark Hotel to prepare to

steal it. He argues that he could not have transported or sold

that much cocaine, but he told Ana Maria that he knew someone who

could sell the cocaine for him and could have used the Suburban to

transport the drugs.

Gatewood's final complaint about his sentence is that the

district court mistakenly thought it lacked the authority to depart

downward. The contention is not supported by the record.

VII.

Gatewood's last two arguments are that 1) the evidence was

insufficient to support his convictions for conspiracy to possess

cocaine with intent to distribute and use of a telephone to

facilitate a drug offense, and 2) the evidence was insufficient to

establish probable cause to arrest him, requiring suppression of

his statements and evidence seized from his car. Both arguments

attack Ana Maria's credibility and reassert the claim that Gatewood

was only trying to earn reward money. We find that the evidence of
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the proposition to Montero, the statements to Ana Maria, the

careful and repeated maneuvers by Musquiz, Garza, and Gatewood, and

the many telephone calls to Ana Maria summed to probable cause and

evidence sufficient to sustain the convictions.

AFFIRMED.