United States v. Pielago ( 1998 )

KRAVITCH, Senior Circuit Judge, concurring in part and dissenting
in part:
I join Part IV.C of the majority opinion, which affirms
Pielago’s conviction, vacates his sentence, and remands his case
for resentencing.1 I respectfully disagree, however, with the
majority’s disposition of Varona’s appeal. In my view, the
government violated Varona’s proffer agreement when, after
indicting Hechavarria on the basis of Varona’s immunized statement
and entering into a plea agreement with him, it had Hechavarria
testify against Varona concerning the very delivery of cocaine that
she described in her statement.2 Because the government had no
legitimate and wholly independent source for Hechavarria’s
testimony, allowing the testimony was patent error. Moreover, the
error was not harmless, given the fact that the government
1
Vacating Pielago’s sentence of 140 months is appropriate
even though that sentence lies within the 121- to 151-month
sentencing range that we prescribe upon remand. The district court
imposed the 140-month sentence under the assumption that the
sentencing range was 135 to 168 months. Because the district court
did not clearly state that it would have imposed the 140-month
sentence even if the sentencing range were 121 to 151 months, we
must remand the case for resentencing. Cf. United States v. De La
Torre, 949 F.2d 1121, 1122 (11th Cir. 1992) (declining to resolve
a dispute as to which guideline range was applicable when the trial
court made clear that the same sentence would have been imposed
irrespective of the outcome of the dispute).
2
In her statement, Varona admitted that on November 6, 1993,
after her husband’s arrest, she gave Hechavarria a scale for
weighing cocaine and sold him the kilogram of cocaine that remained
in the Varona home. Interview of Maria Varona, Gov. Ex. 49, at 2.
Similarly, Hechavarria testified that Varona called him on November
6, after her husband’s arrest, and asked him to come to the Varona
home. Upon Hechavarria’s arrival, Varona handed him a gray tool
box, which, when opened by Hechavarria, revealed, inter alia, a
weighing scale and a kilogram of cocaine. R6: 456-57.
1
introduced no other evidence at trial that would have allowed a
reasonable jury to convict Varona. Varona therefore has
established the elements of plain error. See United States v.
Olano, 507 U.S. 725, 732-735, 113 S. Ct. 1770, 1777-78 (1993)
(stating that plain error is clear or obvious error that affects
substantial rights, in that it is prejudicial and not harmless).
Furthermore, correcting this error on appeal would be a proper
use of this court’s discretionary powers. Because Varona was
sentenced to more than eight years of imprisonment for a conspiracy
conviction based solely on evidence obtained in violation of her
proffer agreement, I believe that the district court’s error
“seriously affect[ed] the fairness, integrity, or public reputation
of judicial proceedings.” See Olano, 507 U.S. at 736-37, 113 S.
Ct. at 1779 (citation omitted). I would reverse her conviction and
remand her case for a new trial.3
I.
Varona’s proffer agreement, interpreted according to
fundamental tenets of contract construction, prohibited the
government from acting as it did in this case. According to
Paragraph 3 of the proffer agreement, “no information or statement
provided by Maria Varona may be used against [her] in this case or
in any other criminal investigation. . . .”4 Paragraph 4 merely
3
I thus dissent as to Part IV.B of the majority opinion. I
concur with Part IV.A, which rejects Varona’s argument that the
superseding indictment should have been dismissed.
4
Proffer Agreement of Maria Varona, Gov. Ex. 48, at 1-2, ¶ 3.
2
qualified that protection by giving the government “the right to
pursue any and all investigative leads derived from Maria Varona’s
statements or information and use such derivative evidence in any
criminal or civil proceedings against her and/or others.”5
Interpreted together, Paragraphs 3 and 4 barred the government both
from using Varona’s “statements” against her and from using
Varona’s “information” against her in the most direct way possible.
The government violated the latter prohibition by using Varona’s
information to prove, in the most direct way possible, that she
distributed cocaine; on the basis of Varona’s immunized statement
that she delivered cocaine to Hechavarria, the government at
Varona’s trial procured Hechavarria’s testimony about the same
transaction.
I respectfully believe that the majority errs in ruling
otherwise. Despite its initial admonition that, whenever possible,
“no term of a contract should be construed to be in conflict with
another,” the majority concludes that the language of Paragraph 4
trumps the general term “information” in Paragraph 3. The majority
thus holds that Paragraph 4 permitted Hechavarria’s testimony as
merely derivative evidence obtained from investigative leads.The
majority’s interpretation not only violates its own principle of
contract construction but also effectively disregards the unique
language of Paragraph 3. Unlike common proffer agreements that bar
only the defendant’s immunized statements from being used in the
5
Id. at 2, ¶ 4. The agreement expressly stated that it did
not impart “transactional immunity” to Varona. Id. at ¶ 7.
3
government’s case-in-chief,6 the proffer agreement in this case
explicitly prohibited the government from using Varona’s
“statements or information” against her.7 It is a time-honored
principle of contract construction that contracts should be
interpreted so as to give meaning to each and every word. See 17A
Am. Jur. 2d Contracts § 387 (1991) (stating that no word in a
contract should be rejected as mere surplusage if the court can
determine any reasonable purpose for that word); id (“A
6
See, e.g, United States v. Chiu, 109 F.3d 624, 626 (9th Cir.
1997) (stating that the defendant’s immunized statements could be
used to prepare witnesses where the government only had agreed not
to “offer in evidence in its case-in-chief . . . any statements
made by the defendant”); United States v. Liranzo, 944 F.2d 73, 76-
77 (2d Cir. 1991) (stating that the proffer agreement, which only
barred the government’s use of the defendant’s “statements” as
evidence at trial, allowed the government to use the defendant’s
immunized identification of himself as the “Frank” named in the
original indictment to refresh the informant’s memory of “Frank’s”
identity and then to file the superseding indictment with “Frank”
correctly identified); cf. United States v. Rutkowski, 814 F.2d
594, 599 (11th Cir. 1987) (holding that Fed. R. Crim. P.
11(e)(6)(D) only excludes evidence of “statements” made in course
of plea discussions and “makes no reference to anything other than
evidence of ‘statements’ as being excludable”).
7
In contrast to proffer agreements that bar only the use of
“statements,” those agreements that prohibit the government’s use
of “information” are broad in scope. In United States v.
Carpenter, 611 F. Supp. 768, 771 (N.D. Ga. 1985), the court
analyzed, inter alia, an unwritten agreement that “any information
furnished by the defendant ‘would not be used against him.’” Id. at
775. The court held that any ambiguity “should be resolved in
favor of the criminal defendant,” id. at 776 (quoting Rowe v.
Griffin, 676 F.2d 524, 526 n.4 (11th Cir. 1982)), and thus the
court rejected the government’s argument that the defendant was
only protected “against direct use of his statements,” id. at 775.
See also United States v. Pelullo, 917 F. Supp. 1065, 1071 (D.N.J.
1995) (holding that immunity letter stating that no “information”
provided by defendant may be used against him in any criminal case
was “expressed in the broadest possible terms” and provided full
use and derivative use immunity).
4
construction will not be given to one part of a contract which will
annul or obliterate another part.”); Fortec Constructors v. United
States, 760 F.2d 1288, 1292 (Fed. Cir. 1985) (describing “well
accepted and basic principle that an interpretation that gives a
reasonable meaning to all parts of the contract will be preferred
to one that leaves portions of the contract meaningless”).8
The majority’s interpretation would render useless the
protection given by Paragraph 3 to “information” provided by
Varona. Whenever the government decides to use “information” (as
opposed to “statements”) provided by a defendant against that
defendant at trial, the government must take steps to procure the
relevant evidence and present it at trial. According to the
majority’s reasoning, these steps always render the procured
evidence merely “derivative evidence” from “investigative leads,”
permissible under Paragraph 4 of the agreement. The majority’s
interpretation thus effectively deletes the term “information” from
Paragraph 3.
Read together properly, Paragraphs 3 and 4 are consistent.
The two provisions barred the government from using Varona’s
information to inculpate her by the most direct means possible, but
they allowed the use of Varona’s information to obtain “derivative
evidence” from “investigative leads.” This interpretation, unlike
8
Indeed, the very contract cases cited by the majority
conclude that “[a]n interpretation that gives a reasonable meaning
to all parts of the contract will be preferred to one that leaves
portions meaningless.” Guaranty Financial Services, Inc. v. Ryan,
928 F.2d 994, 999-1000 (11th Cir. 1991) (quoting United States v.
Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983)).
5
the majority’s, satisfies the majority’s own requirement that “no
term of a contract should be construed to be in conflict with
another unless no other reasonable construction is possible.”
Guaranty Financial Services, Inc. v. Ryan, 928 F.2d at 1000(quoting United States v. Johnson Controls, Inc. 713 F.2d at 1555).
Furthermore, only this interpretation of the contract preserves the
independent meaning of the term “information” in Paragraph 3. See
17A Am. Jur. 2d Contracts § 387; Fortec Constructors, 760 F.2d at
1292; Guaranty Financial Services, 928 F.2d at 999-1000; Johnson
Controls, 713 F.2d at 1555.
An example illustrates the difference between this
interpretation and that of the majority. Assume that Varona,
pursuant to this proffer agreement, told the authorities about the
location of hidden cocaine in her home. Under the majority’s
reasoning, the proffer agreement would allow the government to use
Varona’s information to obtain a warrant, seize the cocaine, and
introduce it as evidence against Varona at trial. The majority
presumably would consider the cocaine to be evidence “two steps
removed in the derivative chain from Varona’s statements and
information” and therefore permitted by the “controlling” language
of Paragraph 4.
Properly interpreted, however, the proffer agreement clearly
would bar such a government strategy. In order to preserve the
meaning of the term “information” in Paragraph 3, the agreement at
a minimum must prohibit the government from using Varona’s
information to inculpate her in the most direct way possible. The
6
agreement thus must prohibit the government from proving Varona’s
possession of cocaine by simply introducing the very cocaine that
Varona herself told the government how to locate. This direct
proof of Varona’s possession would constitute the use of Varona’s
“information” against her, prohibited by Paragraph 3, not the use
of “derivative evidence” obtained from “investigative leads,”
allowed by Paragraph 4. I believe that this interpretation of the
proffer agreement, unlike the majority’s, appropriately reflects
the entire agreement and ensures that the term “information” in
Paragraph 3 retains independent meaning.
Having determined the plain meaning of the proffer agreement,
I conclude that the government violated the agreement in this case.
Just as the government in the example above would have used
Varona’s information to prove her possession of cocaine in the most
direct way possible, here the government used Varona’s information
to prove her distribution of cocaine in the most direct way
possible. Namely, the government used Varona’s description of her
delivery of cocaine in order to obtain the recipient’s testimony
about the same delivery. Apart from using Varona’s own statement
against her at trial (a strategy barred by Paragraph 3's protection
of Varona’s “statements”), the government has no more direct way of
proving Varona’s distribution of cocaine. If Paragraph 3's
protection of Varona’s “information” is to retain independent
meaning, then the agreement must be read to bar the government’s
actions in this case.
Contrary to the majority’s assertion, this interpretation of
7
the proffer agreement is consistent with the plain meaning of
Paragraph 4. Even though the agreement prohibited the government
from using Varona’s information to demonstrate her culpability by
the most direct means possible, the government nonetheless had
ample authority to use “derivative evidence” obtained from
“investigative leads.” For example, the government could have
relied on Varona’s implication of Hechavarria to interview
Hechavarria’s neighbors. Then, consistent with the proffer
agreement, one of the neighbors possibly could have testified at
Varona’s trial that he frequently had seen Varona enter
Hechavarria’s house with packages and leave without them and that
he had been visiting Hechavarria when Varona arrived with a package
containing white powder. Unlike the use of Hechavarria’s testimony
about the very transaction described by Varona, the use of the
neighbor’s testimony would not constitute the direct use of
Varona’s information against her, and it therefore would be
permitted under Paragraph 4 of the agreement.9
9
My analysis, of course, does not extend to several
circumstances not before this court. First, I do not suggest that
the proffer agreement would have prohibited the government’s
behavior if Paragraph 3 merely had barred the government from using
“statements” of the defendant against her in its case-in-chief and
if Paragraph 4 had allowed the government to use all “information”
provided by the defendant against her.
Second, I do not that Varona could have used her immunized
statement to bar Hechavarria’s trial testimony if he was going to
testify against her even absent her statement. Cf. United States
v. Wiley, 997 F.2d 378, 381-82 (8th Cir.) (holding that the
witness’s testimony did not violate the proffer agreement in which
the government had agreed that any information provided by the
defendant would not be used to formulate additional criminal
charges against him; noting that the witness already had given
information about the defendant before the defendant was even
8
II.
Because in my view the government violated Varona’s proffer
agreement when it introduced Hechavarria’s trial testimony against
her, I turn to the question of whether the government had a
legitimate and wholly independent source for Hechavarria’s trial
testimony.10 The grand jury named Hechavarria in the superseding
arrested or questioned), cert. denied, 510 U.S. 1011, 114 S. Ct.
600 (1993); United States v. Blau, 961 F. Supp. 626, 631 (S.D.N.Y.
1997) (holding that the witness’s testimony did not violate
statutory use and derivative use immunity, see 18 U.S.C. § 6002,
where the defendant’s proffer implicating the witness did not
influence witness’s decision to plead guilty and inculpate
defendant).
Third, I do not suggest that the proffer agreement would have
barred Hechavarria’s trial testimony if he had testified not about
the same transaction described in Varona’s statement, but instead
about other narcotics trafficking in which Varona may have been
engaged. Cf. United States v. Catano, 65 F.3d 219, 226 (1st Cir.
1995) (holding that the district court properly allowed the witness
to testify that the defendant stored marijuana at witness’s home,
where the grant of immunity concerned only the “direct use of the
[defendant’s] testimony” and where the defendant had identified the
witness to the government while exposing a fentanyl operation at
the witness’s home). I merely would hold that the proffer
agreement barred the government from putting on Hechavarria’s
testimony about the very transaction described in Varona’s
immunized statement where the government indicted Hechavarria on
the basis of that statement and secured a plea agreement in which
Hechavarria agreed to testify at Varona’s trial.
Finally, I would hold only that the government’s orchestrated
strategy of securing Hechavarria’s indictment, having him plead
guilty, and then introducing his testimony at Varona’s trial
constituted the use of Varona’s information against her. I do not
suggest that the proffer agreement would have barred Hechavarria’s
testimony if he had been tried together with Varona and if he had
inculpated her while testifying in his own defense at trial. But
cf. United States v. Byrd, 765 F.2d 1524, 1532 n.11 (11th Cir.
1985) (“We also strongly suggest that an immunized witness never be
tried with those whom he has implicated.”).
10
The government bears the affirmative burden of establishing
that its evidence was not tainted by a defendant’s immunized
statement; this is done “by establishing the existence of an
independent, legitimate source for the disputed evidence.” United
9
indictment based solely on the testimony of Agent Lucas, who
related the contents of the immunized statements of Varona and
Jose.11 Absent Varona’s immunized statement, the government had no
independent means of securing Hechavarria’s indictment and thus had
no independent means of obtaining his testimony. As the government
itself admits in its brief on appeal, “It was critical for the
government to use Varona’s statement against Hechavarria because
without that statement there would not have been a basis for
indicting him for possession.”12 Moreover, Jose’s debriefing
statement, which also named Hechavarria, does not constitute an
independent source for Hechavarria’s indictment and subsequent
testimony because Varona’s prior debriefing statement may have
shaped Jose’s questioning. See United States v. Schmigdall, 25
F.3d 1523, 1530-31 (11th Cir. 1994) (holding that the government
States v. Schmigdall, 25 F.3d 1523, 1528 (11th Cir. 1994) (citing
Kastigar, 406 U.S. at 460, 92 S. Ct. at 1665); United States v.
Hampton, 775 F.2d 1479, 1485 (11th Cir. 1985) (citing United States
v. Seiffert, 501 F.2d 974, 982 (5th Cir. 1974)). To establish a
“wholly independent” source for its evidence, see Schmigdall, 25
F.3d at 1528 (quoting Kastigar, 406 U.S. at 460, 92 S. Ct. at
1665), the government must demonstrate that each step of the
investigative chain through which the evidence was obtained was
untainted, see Schmigdall, 25 F.3d at 1528 (citing Hampton, 775
F.2d 1479 at 1489).
11
See Gov. Ex. 52 at 2-7.
12
Br. of the U.S. at 19. Cf. Hampton, 775 F.2d at 1488-89(holding that government violated transactional immunity when it
used testimony of immunized witness to build case against co-
conspirator, who consequently struck a plea bargain with
prosecutors and agreed to testify before grand jury against the
immunized witness; stating that “government made absolutely no
attempt to establish that the testimony of [the co-conspirator] was
obtained independently of [the witness’s] immunized testimony”).
10
failed to carry burden of proving an independent source of
immunized statements where such statements may have been used to
shape the questioning of proffered alternative sources of
information).
My analysis would be different if, prior to Varona’s
statement, Hechavarria had been indicted and had pleaded guilty.
Under those circumstances, the government presumably would have had
a legitimate and wholly independent source for its evidence, and
Varona could not have used her debriefing statement to protect
herself from Hechavarria’s trial testimony. Here, however, the
government obviously had no independent source for Hechavarria’s
trial testimony. I thus conclude that the district court erred in
allowing Hechavarria to testify about the same transaction
described in Varona’s statement.
III.
Having determined that the admission of Hechavarria’s
testimony was erroneous, I address the majority’s contention that,
even if Varona has demonstrated error, the error was not “plain
error.” Because Varona’s counsel failed to object to Hechavarria’s
testimony at trial, Varona must demonstrate on appeal that: (1)
the error was plain, clear, or obvious; and (2) the error affected
substantial rights, in that it was prejudicial and not harmless.
See United States v. Olano, 507 U.S. 725, 732-735, 113 S. Ct. 1770,
1777-78 (1993); United States v. Foree, 43 F.3d 1572, 1577-78 (11th
11
Cir. 1995); see also Fed. R. Crim. P. 52(b).13 I believe that
Varona has met both of these requirements.
A.
The majority asserts that “when two of the three judges who
address a matter conclude that there is no error at all, that must
mean there is no plain error.” I respectfully disagree. In my
view, the majority’s interpretation of Varona’s proffer agreement
impermissibly deems two of the agreement’s provisions to be in
conflict and renders meaningless the term “information” in
Paragraph 3. Because I do not agree with my esteemed colleagues’
interpretation of the agreement, their conclusion does not convince
me that the district court’s error was any less obvious.14
Moreover, even if the majority’s interpretation were a
legitimate alternative to the one I posit, that would only indicate
that the agreement’s language was ambiguous. The agreement’s legal
significance nonetheless would be clear: the agreement barred the
government from acting as it did in this case. Where the language
of an immunity agreement is ambiguous, the agreement must be
13
It “is the defendant rather than the Government who bears
the burden of persuasion with respect to prejudice.” Foree, 43
F.3d at 1578 (citing Olano, 507 U.S. at 734, 113 S. Ct. at 1778).
14
Plain error review is appropriate in this case because the
district court, at the time of Hechavarria’s testimony, was aware
of all of the relevant circumstances, including the language of
Varona’s proffer agreement, the contents of her debriefing
statement, and the government’s use of her statement to indict
Hechavarria. On March 13, 1995, several days before Hechavarria’s
testimony on March 16, Varona’s counsel presented these matters to
the court in connection with Varona’s motion to dismiss the
superseding indictment. See R4: 192-205.
12
interpreted according to the defendant’s reasonable understanding
at the time she entered into it. See In re Arnett, 804 F.2d 1200,
1202-03 (11th Cir. 1986) (interpreting plea agreement according to
defendant’s reasonable understanding at time of plea); Rowe v.
Griffin, 676 F.2d 524, 528 (11th Cir. 1982) (interpreting immunity
agreements pursuant to principles applied to interpretation of plea
agreements).15 Indeed, any ambiguity in the promise of immunity
must be resolved in favor of the defendant. Id. at 526 n.4. I
find it obvious that Varona reasonably would have believed that the
agreement barred the government from using her statement to obtain
Hechavarria’s testimony about the same transaction described in her
statement. She reasonably would not have assumed that Paragraph
3's prohibition on using “information” that she provided against
her was completely trumped by Paragraph 4, which allowed the
indirect pursuit of “investigatory leads” and use of “derivative
evidence.”
According to the majority, the fact that Varona’s counsel
failed to object to Hechavarria’s testimony demonstrated that the
government did not plainly violate Varona’s proffer agreement.
Plain error, however, may occur even when the defense counsel fails
15
Cf. United States v. $87,118.00 in U.S. Currency, 95 F.3d
511, 517 (7th Cir. 1996) (stating that, when interpreting proffer
agreements, ordinary contract principles should be supplemented
with concern that the bargaining process not violate the
defendant's rights to fundamental fairness under the Due Process
Clause) (citation omitted); United States v. Plummer, 941 F.2d 799,
804 (9th Cir. 1991) (stating that ambiguity in an immunity
agreement with two contradictory, yet reasonable, interpretations
should be “resolved against the one who drafted the language”).
13
to object to the government’s violation of an immunity agreement.
See United States v. Fant, 974 F.2d 559, 564-65 (4th Cir. 1992)
(vacating sentence and remanding where use of defendant’s immunized
statements for purposes of sentence enhancement constituted plain
error); United States v. Brimberry, 744 F.2d 580, 587 (7th Cir.
1984) (remanding for evidentiary hearing where trial court
committed plain error in failing to determine, sua sponte, whether
government’s prosecution violated the immunity provision of the
defendant’s plea agreement). The fact that Varona’s counsel was
present when she signed the proffer agreement does not render the
district court’s error any less plain. Cf. United States v.
McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (vacating sentence for
plain error where government, without objection, violated terms of
plea agreement during sentencing); United States v. Goldfaden, 959
F.2d 1324, 1327 (5th Cir. 1992) (same).16
B.
16Furthermore, Varona’s counsel had almost no warning
concerning the content of Hechavarria’s testimony. Hechavarria
signed his plea agreement with the government on March 15, 1995,
the third day of the trial and only the day before he testified
against Pielago and Varona. See Plea Agreement of Carlos
Hechavarria, Gov. Ex. 42, at 5. At the end of the day on March 15,
Varona’s counsel told the court, “[F]rankly, I haven’t the vaguest
idea what this man [Hechavarria] is going to testify to.” R5: 390.
The government eventually delivered to Varona’s counsel a one-page,
handwritten note about the government’s debriefing of Hechavarria,
see R5: 391; R6: 437, and then, during the morning of March 16, the
government put Hechavarria on the stand to testify against Pielago
and Varona, see R6: 445. These circumstances do not excuse the
defense counsel’s failure to object to Hechavarria’s testimony
about Varona’s delivery of cocaine. Nonetheless, the defense
counsel’s error hardly demonstrates that the government “was within
its rights,” as the majority suggests.
14
The final element of the plain error inquiry is whether Varona
has met her burden of proving that the error was not harmless. See
Olano, 507 U.S. at 734-35, 113 S. Ct. at 1777-78. Admitting
Hechavarria’s testimony against Varona was harmless error only if
this court is “persuaded beyond a reasonable doubt that the jury
would have reached the same verdict even without consideration of
the tainted evidence.” United States v. Nanni, 59 F.3d 1425, 1433
(2d Cir. 1995), cert. denied, -- U.S. --, 116 S. Ct. 576 (1995).
I believe that Varona has proven beyond dispute that there is at
least a reasonable doubt that the jury would not have convicted her
absent Hechavarria’s testimony.
To convict Varona of conspiracy to possess cocaine with intent
to distribute it, the jury had to find beyond a reasonable doubt
that: 1) a conspiracy existed; 2) the defendant knew of the
essential elements of the conspiracy; and 3) the defendant
voluntarily and knowingly participated in the conspiracy. United
States v. Harris, 20 F.3d 445, 452 (11th Cir.), cert. denied, 513
U.S. 967, 115 S. Ct. 434 (1994). “At a minimum, the defendant must
willfully associate himself in some way with the criminal venture
and willfully participate in it as he would in something he wished
to bring about.” United States v. Newton, 44 F.3d 913, 922 (11th
Cir. 1994), -- U.S. --, 116 S. Ct. 161 (1995). Moreover, the
defendant must have “a deliberate, knowing, and specific intent to
join the conspiracy.” Harris, 20 F.3d at 452 (citation omitted).
A defendant’s participation in a conspiracy “need not be
proven by direct evidence. That [he] had a common purpose and plan
15
with the other conspirators may be inferred from a ‘development and
collocation of circumstances.’” United States v. Lyons, 53 F.3d
1198, 1201 (11th Cir.) (citation omitted), cert denied, -- U.S. --,
116 S. Ct. 262 (1995). Where the government’s case is
circumstantial, however, “reasonable inferences, and not mere
speculation, must support the jury’s verdict.” United States v.
Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994), cert. denied, 515
U.S. 1145, 115 S. Ct. 2584 (1995). For example, mere speculation
as to the interpretations of words used by the defendant is
insufficient evidence to link the defendant to a conspiracy. See
United States v. Young, 39 F.3d 1561, 1565-66 (11th Cir. 1994).
Similarly, a defendant’s association with conspirators and her
knowledge of the conspirators’ actions are not themselves
sufficient proof of participation in a conspiracy. See United
States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997)(stating
that repeated presence at scene of drug trafficking, though
probative, is not by itself sufficient evidence to support a
conspiracy conviction); Lyons, 53 F.3d at 1201 (holding that
“[m]ere presence, guilty knowledge, even sympathetic observation
have all been held by this court to fall short of the proof
required to support” a conviction for “conspiracy to possess and
distribute drugs”). This court repeatedly has relied upon these
principles in reversing conspiracy convictions for insufficiency of
evidence.17
17
See, e.g., United States v. Thomas, 8 F.3d 1552, 1556, 1558
(11th Cir. 1993) (holding that evidence that the defendant knew of
16
Even though the government introduced surveillance and wiretap
evidence at trial, Hechavarria’s testimony was the only evidence
indicating Varona’s knowing participation in a conspiracy to
possess cocaine with intent to distribute it. Prior to her
husband’s arrest on the evening of November 6, 1993, only one
telephone call involving Varona was intercepted; on October 20,
1993, Varona merely answered the phone and gave it to Jose.18 The
government witness monitoring Frank Novaton’s phone on November 6
stated that he intercepted calls between the Varona phone and the
Novaton phone concerning an eight kilogram cocaine transaction, but
he specifically stated that none of those calls involved Varona.19
Similarly, the government presented no inculpatory surveillance
evidence gathered prior to Jose’s arrest. Agent Lucas testified
planned bank robbery did not prove that he participated in
conspiracy); United States v. Villegas, 911 F.2d 623, 631 (11th
Cir. 1990) (stating that the defendant’s looking left and right in
the vicinity of his brother’s cocaine deal was insufficient to show
participation in the conspiracy), cert. denied, 499 U.S. 977, 111
S. Ct. 1625 (1991); United States v. Hernandez, 896 F.2d 513, 519-
20 (11th Cir.) (holding that the defendant’s association with the
co-defendant was insufficient to prove conspiracy or possession
even though the defendant was in vehicle from which drugs were
retrieved and was present when drugs were given to an undercover
agent), cert. denied, 498 U.S. 858, 111 S. Ct. 159 (1990).
18
R4: 31 (testimony of Detective Morejon). Another government
witness testified that part of a telephone call intercepted on
November 6, 1993, involved Hechavarria and Varona talking about
“telemedia cable.” R4: 128-29 (testimony of Detective Diaz). The
witness specifically stated that he was not suggesting that the
discussion of cable television was a coded conversation about
cocaine. R4: 129. Varona’s voice also was heard in the background
during an intercepted phone call between Jose and Hechavarria on
November 6, 1993. She apparently was shouting at her children.
R4: 104-05 (testimony of Detective Marrero); Gov. Ex. 11B.
19
R5: 318-21 (testimony of Sergeant Martinez).
17
only that Varona and two children arrived at the house in the
evening of November 6 after Jose and Pielago had entered with the
cocaine.20 He did not suggest that Varona participated in any way
in obtaining the cocaine, nor did he testify that Varona assisted
Jose and Pielago in readying the cocaine for transport.
Other evidence concerning Varona consisted of phone calls
intercepted after Jose was arrested. Viewed in the light most
favorable to the government, these phone calls suggest only that
Varona knew that Jose had cocaine with him when he left the Varona
residence on the evening of November 6 and that she knew where he
was going. Such evidence, standing alone, failed to establish that
Varona knowingly participated in a conspiracy. See Lyons, 53 F.3d
at 1201. Notably, no evidence indicated that an extra kilogram of
cocaine21 remained in the Varona residence after Jose and Pielago
left, much less that Varona knew about the kilogram or gave the
kilogram to anyone.
Only by introducing Hechavarria’s testimony about Varona’s
20
R4: 170 (testimony of Agent Lucas). The evidence did not
demonstrate that Varona actually met with Jose and Pielago, but
rather only that she arrived at the house while they were there.
R5: 246 (testimony of Agent Lucas).
21
Absent Hechavarria’s testimony, the trial evidence does not
even demonstrate that an extra kilogram of cocaine existed. The
crucial government witness on this issue contradicted himself
regarding whether Jose had obtained eight or nine kilograms of
cocaine prior to his arrest with eight kilograms. Compare R5: 318-
21 (testimony of Sergeant Martinez) (stating that intercepted phone
calls between the Varona phone and the Novaton phone on November 6
established that there was activity in relation to the delivery of
eight kilograms of cocaine) with R5: 329 (testimony of Sergeant
Martinez) (stating that he “knew from what was going on during the
investigation” that Jose had picked up nine kilograms of cocaine).
18
delivery of cocaine did the government present sufficient evidence
to convince a jury beyond a reasonable doubt that Varona knowingly
participated in a conspiracy to possess cocaine with intent to
distribute it. Hechavarria testified that Varona called him after
her husband’s arrest and asked him to go by her house; when he
arrived, Varona gave him a gray tool box that contained a kilogram
of cocaine.22 Hechavarria’s testimony was not refuted, nor was it
effectively challenged on cross-examination.
Apart from Hechavarria’s testimony about Varona’s delivery of
cocaine, the government did not even present a prima facie case of
conspiracy against Varona. Under the plain error rule, Varona has
met her burden of proving that there is at least a reasonable doubt
that the jury would not have convicted her absent Hechavarria’s
testimony about the transaction. See Olano, 507 U.S. at 734-35,
113 S. Ct. at 1777-78; see also Nanni, 59 F.3d at 1433.23
IV.
22
R6: 456-57.
23
Even with Hechavarria’s testimony, the jury had a difficult
time reaching a guilty verdict against Varona. After one day of
deliberations, the jury reached a verdict regarding Pielago, but it
advised the court that it was unable to reach a verdict as to
Varona. The district judge then gave the jury a modified Allen
charge. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154(1896). Following an additional day of deliberations, the jury
submitted a note announcing that it was hopelessly deadlocked as to
Varona. Upon being summoned to announce its verdict as to Pielago,
however, the jury found Varona guilty of conspiracy. Although this
sequence of events does not reveal the precise nature of the jury’s
deliberations on the conspiracy charge, courts in other cases have
reasoned that an error was less likely to have been harmless where
an Allen charge was necessary. See, e.g., United States v.
Shavers, 615 F.2d 266, 269 (5th Cir. 1980); Mason v. Scully, 16
F.3d 38, 45 (2d Cir. 1994).
19
Even in a case involving plain error, “the Courts of Appeals
should correct such error[] only when [it] ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’”
United States v. Foree, 43 F.3d 1572, 1578 (11th Cir. 1995) (citing
United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779
(1993) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56
S. Ct. 391, 392 (1936))). I believe that the government’s
violation of Varona’s proffer agreement is sufficiently troubling
to merit correction on appeal.
First, strict enforcement of immunity agreements protects
central values of the judicial system, namely defendants’ right to
due process and their right against self-incrimination. See United
States v. Harvey, 869 F.2d 1439, 1444 (11th Cir. 1989) (“Due
process requires the government to adhere to the terms of any plea
bargain or immunity agreement it makes.”); Rowe v. Griffin, 676
F.2d 524, 528 (11th Cir. 1982) (“When such a promise [of immunity]
induces a defendant to waive his fifth amendment rights by
testifying at the trial of his confederates or to otherwise
cooperate with the government to his detriment, due process
requires that the prosecutor’s promise be fulfilled.”); United
States v. Weiss, 599 F.2d 730, 737 (5th Cir. 1979) (“To protect the
voluntariness of a waiver of fifth amendment rights, where a plea,
confession, or admission is based on a promise of a plea bargain or
immunity, the government must keep its promise.”); cf. United
States v. $87,118.00 in U.S. Currency, 95 F.3d 511, 517 (7th Cir.
1996) (stating that immunity provisions of proffer agreements must
20
be interpreted to ensure “that the bargaining process not violate
the defendant’s rights to fundamental fairness under the Due
Process Clause”) (quotation omitted). Second, allowing the
government to violate immunity agreements without any consequence
seriously undermines the public reputation of the fairness of the
judicial system. Third, failure to enforce the terms of immunity
agreements renders such agreements significantly less attractive to
witnesses and thus weakens an important law enforcement tool.
As the majority notes, the plain error rule is a narrow
exception to the contemporaneous objection rule. Nonetheless,
plain error review must be available to remedy palpable injustice.
The Supreme Court has explained that Fed. R. Crim. P. 52(b), the
plain error rule,
was intended to afford a means for the prompt redress of
miscarriages of justice. . . . The Rule thus reflects a
careful balancing of our need to encourage all trial
participants to seek a fair and accurate trial the first
time around against our insistence that obvious injustice
be promptly addressed.
United States v. Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592
(1982). In my view, convicting Varona solely on the basis of
evidence obtained in violation of her proffer agreement is just the
sort of injustice for which plain error review is appropriate.
Moreover, I disagree with the majority’s implication that
reversal for plain error is limited to cases involving an
intervening change in law or a violation of specific procedural
rules, such as Fed. R. Crim. P. 11. In one of the very cases cited
by the majority, this court reversed the defendant’s conviction
21
solely on the grounds that certain testimony, to which the defense
failed to object, was unduly prejudicial. See United States v.
Sorondo, 845 F.2d 945 (11th Cir. 1988) (reversing conviction
because admission of DEA agent’s testimony about informant’s record
in assisting other successful prosecutions was plain error).
Indeed, this court has ruled that a variety of different types of
error are plain error requiring reversal.24 The prosecution’s
prejudicial violation of an immunity agreement can be reversible
plain error, as well. Cf. United States v. Fant, 974 F.2d 559,
564-65 (4th Cir. 1992) (vacating sentence and remanding where use
of defendant’s immunized statements for purposes of sentence
enhancement constituted plain error); United States v. Brimberry,
744 F.2d 580, 587 (7th Cir. 1984) (remanding for evidentiary
hearing where trial court committed plain error in failing to
determine, sua sponte, whether government’s prosecution violated
the immunity provision of the defendant’s plea agreement).
In light of the overwhelming importance of Hechavarria’s
24
See, e.g., United States v. Banks, 942 F.2d 1576, 1579-81
(11th Cir. 1991) (reversing for plain error where jury instruction
was inadequate to permit jury to give proper consideration to
proffered defense); United States v. Singleterry, 646 F.2d 1014,
1018-19 (5th Cir. Unit A June 1981) (reversing for plain error
where prosecutor asked defendant whether he associated with
convicted felons); United States v. Darland, 626 F.2d 1235, 1237-38
(5th Cir. 1980) (reversing for plain error where judge excluded
evidence concerning defendant’s reputation for honesty, integrity,
and peacefulness); United States v. Thompson, 615 F.2d 329, 332-333
(5th Cir. 1980) (reversing for plain error where judge dismissed
government witness and instructed jury to disregard her surprise
adverse testimony); United States v. Garza, 608 F.2d 659, 663-66
(5th Cir. 1979)(reversing for plain error where prosecutor vouched
for government witnesses and stated that government had no interest
in convicting the wrong person).
22
testimony to the government’s case against Varona, I find the
majority’s invocation of the “sandbagging” threat to be
unpersuasive. Varona’s counsel had nothing whatsoever to gain by
failing to object to Hechavarria’s testimony at trial, but if he
had objected and the objection had been sustained, the government’s
case against Varona almost certainly would have failed. This case,
therefore, hardly is one in which a defense lawyer “intentionally
decline[d] to object to a potentially unconstitutional trial
procedure in order to inject reversible error into the proceeding.”
United States v. Joshi, 896 F.2d 1303, 1307 n.3 (11th Cir.), cert.
denied, 498 U.S. 986, 111 S.Ct. 523 (1990).
In my view, the record unequivocally indicates that
Hechavarria’s testimony was obtained in violation of Varona’s
proffer agreement. The record also indicates that the government
had no legitimate and wholly independent source for Hechavarria’s
testimony and that no reasonable jury could have convicted Varona
absent his testimony. I therefore would reverse Varona’s
conviction and remand her case for a new trial.25
Accordingly, although I CONCUR with Parts IV.A and IV.C of the
majority opinion, I respectfully DISSENT as to Part IV.B.
25
Under these circumstances, I see no need for the district
court to conduct either an evidentiary hearing pursuant to United
States v. Kastigar, 406 U.S. 441, 92 S. Ct. 1653 (1972), or a
harmless error inquiry. See United States v. Schmigdall, 25 F.3d
1523, 1531 n.10 (11th Cir. 1994) (reviewing cases involving use of
immunized testimony and concluding that “[i]n every case ordering
outright reversal, the opinion indicated that there was a clear use
of immunized testimony and that further proceedings would be
futile”).
23