United States v. Garza

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

April 26, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

______________________ Clerk

No. 04-41244

______________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

versus

FRANCISCO CABRERA GARZA

Defendant-Appellant

___________________________________________________

Appeal from the United States District Court for

the Eastern District of Texas, Sherman Division

___________________________________________________

Before JONES, Chief Judge, KING, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

On January 9, 2003, Appellant Francisco Garza was charged in

one count of a multi-count, multi-defendant indictment with

conspiracy to distribute or dispense, or possess with intent to

distribute or dispense 3,4 methylenedioxy-methamphetamine (“MDMA”

or “Ecstasy”), methamphetamine, cocaine, and gamma hydroxybutyrate

(“GHB”) in the Eastern District of Texas. A trial was held from

July 13 - 18, 2003, and Garza was subsequently convicted of the

conspiracy charge. On December 17, 2003, Garza was sentenced to

1

life imprisonment, a $5,000 fine, and five years of supervised

release. Garza filed a motion for new trial, which was granted by

the district court because a portion of the trial transcript was

missing. After a second trial from July 6 - 9, 2004, Garza was

again convicted of the conspiracy. In September 2004, Garza was

sentenced to 360 months imprisonment, a $5,000 fine, and five years

supervised release. Garza filed a timely notice of appeal. We

affirm the conviction but vacate the sentence and remand for

resentencing.

ISSUES ON APPEAL

Garza raises three issues on appeal regarding his trial and

sentencing. First, he claims that the district court abused its

discretion in refusing to allow Michael Grimes, a former

investigator for the United States Department of Justice Inspector

General, to testify or present his report as to his opinion of the

credibility of Dallas Police Officer Barry Ragsdale to whom Garza

allegedly confessed involvement in the conspiracy. The district

court found that Grimes lacked sufficient information to form a

reliable opinion and that his report did not constitute a party

admission. Second, Garza argues that the district court erred in

not allowing him to present the testimony of Linda James, a full-

time document examiner. Garza attempted to introduce Ms. James’

testimony that the signatures of Kim Sanders acting as a witness to

Garza’s alleged confession and consent to search did not match

2

other known signatures of Sanders. Ms. James used copies rather

than original documents in forming her opinion, and did not produce

a report of her findings for the prosecution. The district court

found that Ms. James’ testimony would not be reliable and that

exclusion of her testimony was appropriate under the discovery

rules. Third, Garza argues that his sentence was enhanced

impermissibly by the district judge based on facts not found by a

jury beyond a reasonable doubt. According to Garza, because he

committed his crime prior to Booker, he should be sentenced only

according to the merits opinion and not the remedy portion of

Booker.

DISCUSSION

I. Opinion Evidence Regarding the Truth of a Government Witness

A. Michael Grimes’ opinion testimony

The defense sought to introduce the testimony of Michael

Grimes regarding his opinion of Officer Ragsdale’s veracity in

federal prosecutions, pursuant to Federal Rule of Evidence 608(a).1

In 1998, Michael Grimes, then an investigator for the United States

Department of Justice Inspector General, investigated Officer

1

Fed.R.Evid. 608(a) states: “The credibility of a witness may

be attacked or supported by evidence in the form of opinion or

reputation, but subject to these limitations: (1) the evidence may

refer only to character for truthfulness or untruthfulness, and (2)

evidence of truthful character is admissible only after the

character of the witness for truthfulness has been attacked by

opinion of reputation evidence or otherwise.”

3

Ragsdale. The investigation was prompted by Assistant United

States Attorney Colleen Murphy expressing concern over her belief

that Officer Ragsdale made representations to her that a certain

defendant had cooperated when, in fact, he had not done so.2

During his investigation, Grimes interviewed several witnesses

(defense attorneys, police officers, and prosecutors) regarding

their impression of Ragsdale. Grimes also had a couple of

conversations with Ragsdale, which led Grimes to believe that

Ragsdale was not being truthful because of his hand and eye

movements, and because Ragsdale was being too nice to Grimes.

After the investigation, which lasted about two moths, Grimes

formed the opinion that Ragsdale was deceptive. However, Grimes

recommended that no prosecution be filed based on insufficient

evidence. The district court would not permit Grimes to testify as

to his opinion.

Questions concerning the admissibility of evidence are

reviewed for an abuse of discretion.3 Rule 608 allows witnesses to

present their opinion regarding an individual’s character for

truthfulness and imposes no prerequisite conditioned upon long

2

The defendant referred to here is not connected to the instant

case.

3

United States v. Hicks, 389 F.3d 514, 522 (5th Cir. 2004).

If the Court finds an abuse of discretion, it considers any error

under the harmless error doctrine, affirming the judgment unless

the ruling affected a substantial right of the complaining party.

Hicks, 389 F.3d at 524.

4

acquaintance. However, this Court held in US v. Dotson that Rule

608 does not “abandon all limits on the reliability and relevance

of opinion evidence.”4 Rather, if the court finds the witness

lacks sufficient information to have formed a reliable opinion, the

judge can exclude relying on Rules 403 and 602.”5 Further, the

Court also stated that the opinion witness’ testimony must comply

with Rule 701, which provides, “If the witness is not testifying as

an expert, his testimony in the form of opinions of inferences is

limited to those opinions or inferences which are (a) rationally

based on the perception of the witnesses and (b) helpful to a clear

understanding of [...] the determination of a fact in issue.”6

Therefore, the Dotson Court concluded that “[a]n opinion, or indeed

any form of testimony, without the underlying facts, may be

excluded if it amounts to no more than a conclusory observation.”7

In deciding whether to allow Grimes’ testimony, the district

court carefully considered whether the testimony would satisfy the

requirements of Rule 608. The record indicates that the district

court repeatedly stated that it would allow such opinion testimony

if a proper foundation was laid. In order to adequately decide the

4

799 F.2d 189, 192 (5th Cir. 1986).

5

Id., citing, 3 Weinstein’s Evidence §608[04], 608-20 (1985).

6

Id.

7

Id. at 192-3, citing, United States v. Phillips, 600 F.2d 535,

538-39 (5th Cir. 1979).

5

issue, the district court allowed Grimes to take the stand and be

questioned by both sides out of the hearing of the jury. Following

the direct examination, cross-examination, and re-direct of Mr.

Grimes, the district court analyzed the present case in light of

Dotson. The district court admitted that Grimes had gone further

in his investigation than did the agents in Dotson whose testimony

was excluded.8 However, the district court also felt that Grimes’

investigation had not gone so far as the investigation of the agent

whose testimony was allowed in Dotson.9 Ultimately, the district

court found it to be a close question but concluded that an

adequate foundation had not been laid for Mr. Grimes’ opinion.

The district court did not abuse its discretion in excluding

Grimes’ opinion testimony. In coming to its decision, the district

court applied the correct legal standard and analyzed the case in

light of circuit precedent. As Dotson explains, the determination

of whether a sufficient basis for opinion testimony has been

demonstrated should be made by the trial court “deliberately and in

8

The Court in Dotson excluded the testimony of two FBI agents

who wanted to give their opinions of a witnesses credibility,

because the only basis for the agents’ testimony was that they had

taken part in a criminal investigation of the witness. 799 F.2d at

193.

9

The Dotson Court allowed the opinion testimony of one FBI

agent because he had interviewed the witness four times,

investigated her tax returns and financial information, and studied

her Grand Jury testimony. Id.

6

the exercise of considered discretion.”1 Here, the district court

exercised sound consideration of Grimes’ testimony. Though it was

a close call, the fact that the district court may not have been in

error in admitting the testimony does not mean that the court

abused its discretion in excluding the testimony. In Dotson, this

Court explained that it was not holding that “a government agent’s

opinion of a witness’s character may never be based exclusively on

what the agent learned on an official investigation.”2 However,

the Dotson Court also explained that “the fact that one has

conducted an investigation of the defendant, has known the

defendant, or has had minimal contact with the defendant’s witness

is not a sufficiently reliable basis under Rules 608(a) and 701 for

that witness, over objection, to put before the jury that they are

liars.”3 Therefore, in the absence of a holding that directly

decided whether testimony like Grimes’ must be admitted, the

district court used analogy to decide whether Grimes’ opinion had

a basis making it more than bare assertions. It was not an abuse

of discretion to come to the considered decision that there was not

an adequate foundation for Grimes’ opinion.

B. Michael Grimes’ Investigation Report

Garza also argues that it was error for the district court to

1

799 F.2d at 193.

2

Id.

3

Id. at 194.

7

exclude the report containing Grimes’ opinion as a party admission.

Again, questions concerning the admissibility of evidence are

reviewed for an abuse of discretion.4 According to Garza, the

investigation report qualifies as an admissible party admission

under Federal Rules of Evidence 801(d)(2)(B) and 801(d)(2)(D)

because, when he prepared the report, Grimes was employed by the

Department of Justice, the entity prosecuting Garza. In pertinent

part, Rule 801(d)(2) provides that an admission by a party-opponent

is not hearsay if:

The statement is offered against a party and

is...(B) a statement of which the party has manifested an

adoption or belief in its truth, or...(D) a statement by

the party’s agent or servant concerning a matter within

the scope of the agency or employment, made during the

existence of the relationship.

Garza’s argument that the investigation report is admissible under

Rule 801(d)(2)(B) fails because the prosecution has never

manifested an adoption of belief in the truth of Grimes’ report.

Though it is not as well-settled in this Circuit’s precedent,

Garza should also fail in his argument that the investigation

report is admissible under 801(d)(2)(D). Garza argues that Grimes

prepared his report during the course and scope of his employment

while acting as a government agent. Therefore, according to Garza,

4

Hicks, 389 F.3d at 522.

8

Grimes’ report on Ragsdale is “a statement by the party’s agent or

servant concerning a matter within the scope of the agency or

employment, made during the existence of the relationship.”

Fed.R.Evid. 801(d)(2)(D). However, other circuits have declined to

extend Rule 801(d)(2)(D) to statements made by government agents,

especially in criminal trials.5

In U.S. v. Van Griffin, the Ninth Circuit explained, “We do

not say that every publication of every branch of government of the

United States can be treated as a party admission by the United

States under Fed.R.Evid. 801(d)(2)(D).”6 In U.S. v. Pravette, the

Seventh Circuit noted that “courts faced with this issue have

refused to apply this provision to government employees testifying

in criminal trials based on the rationale that no individual can

bind the sovereign.”7 In this case, Grimes’ investigation related

to a different criminal case. The results of his investigation

5

There are circuits, however, that have held that statements

made by a prosecutor, rather than some other government employee,

are admissible against the Government as a party admission under

801(d)(2)(D) because prosecutors have the power to bind the

sovereign. See, e.g., United States v. Salerno, 937 F.2d 797, 811-

12 (2d Cir. 1991); see also, United States v. DeLoach, 34 F.3d

1001, 1005 (11th Cir 1994).

6

874 F.2d 634, 638 (9th Cir. 1989).

7

16 F.3d 767, 799 n.9 (7th Cir. 1994), citing, United States v.

Kampiles, 609 F.2d 1233, 1245 (7th Cir. 1979) (“Because the agents

of the Government are supposedly disinterested in the outcome of a

trial and are traditionally unable to bind the sovereign, their

statements seem less the product of the adversary process and hence

less appropriately described as admissions of a party.”).

9

were never adopted by the Department of Justice, and no prosecution

was recommended. It hardly seems within the spirit of Rule

801(d)(2)(D) to admit Grimes’ opinion regarding Officer Ragsdale’s

veracity as an admission by the Government. Therefore, the

district court did not abuse its discretion in ruling that Grimes’

report could not be attributed to the Government.

II. Forensic Expert Opinion

Garza argues that the district court abused its discretion in

not allowing forensic document examiner, Linda James, to testify

that the signatures of witness Kim Sanders on Garza’s alleged

confession and consent to search did not match known signatures of

Sanders. At trial, Sanders testified that he witnessed Garza’s

confession and consent. The defense then called Linda James, a

handwriting expert, to testify that Sanders’ signatures on Garza’s

statements were forgeries. The prosecution objected and the

district court allowed the parties to state their positions outside

the hearing of the jury.8 At that time, James was examined by the

defense and the prosecution. She explained that her expert opinion

was based on her examination of six photocopied documents, four of

which were known to have been signed by Sanders, and two documents

with alleged signatures of Sanders that were being questioned. The

8

The prosecution first objected to the relevance of James’

testimony. The district court correctly ruled that James’s

testimony was relevant to whether or not Sanders signed the

statements as a witness. Therefore, relevancy is not an issue

before the Court.

10

questioned documents included Garza’s confession and consent to

search. James concluded that the two questioned documents were

signed by someone other than the signer of the other four

documents.

The prosecution objected that James’ testimony should be

excluded because the defense did not follow the discovery rules by

disclosing the expert and her opinion before trial. Defense

counsel argued that the prosecution never requested such

information. However, the district court rejected the defense’s

argument, finding that the pretrial order clearly provided for

reciprocal discovery. This Circuit has held that “a trial court’s

decision to exclude evidence as a means of enforcing a pretrial

order ‘must not be disturbed’ absent a clear abuse of discretion.”9

In exercising its discretion in considering the imposition of

sanctions for discovery violations, a district court should

consider the following factors: (1) the reasons why the disclosure

was not made; (2) the amount of prejudice to the opposing party;

(3) the feasibility of curing such prejudice with a continuance of

the trial; and (4) any other relevant circumstances.10 “In

fashioning any such sanction, the district court should impose only

that sanction which is the least severe way to effect compliance

9

Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990),

citing, Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir. 1971); see

also Fed.R.Civ.P. 16(f).

10

US v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000).

11

with the court’s discovery orders.”11

Defense counsel makes a lot out of the argument that they did

not have to produce an expert report because Ms. James testified

that she did not prepare a report until the day that she walked

into the court to testify. However, it is really of no consequence

whether exclusion of Ms. James’ testimony was too harsh of a

sanction for a pretrial order violation, if there even was a

violation. This is because the district court also based its

opinion on Federal Rule of Evidence 702.12

Out of the hearing of the jury, James admitted that she did

not know how many times the documents had been photocopied, but she

testified that she believed the quality of the copies were clear

enough for her to use them as the basis of her opinion. James

also admitted that she requested original exemplars of Sanders’

signature from defense counsel, but that originals were not

provided. When questioned, James agreed that to look at the

original signatures is the best practice. After considering this,

the district court stated, “I find that her testimony, based on the

11

Id.

12

Fed.R.Evid. 702 provides that: “If scientific, technical, or

other specialized knowledge will assist the tried of fact to

understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training,

or education, may testify thereto in the form of an opinion or

otherwise, if (1) the testimony is based upon sufficient facts or

data, (2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and methods

reliably to the facts of the case.”

12

examination of copies, comparing them, copies, Xerox copies,

without any knowledge about how often they had been copied, whether

that’s a second, third, fourth, fifth, or tenth copy that had been

made, in other words, a copy of a copy, I find that her testimony

would not be reliable under Rule 702.” As a considered

determination applying the correct legal standard, it cannot be

said that the district court’s ruling was an abuse of discretion.

Garza refers to cases that suggest that James’s reliance on

photocopies went to the weight of her opinion, rather than to its

admissibility. However, as the district court points out, in this

case, the expert was not even sure how many times the signatures

had been photocopied. Furthermore, even if the district court was

in error for excluding the expert testimony, such error was

harmless and did not effect Garza’s substantial rights. To offset

any potential prejudice to the defense, the district court allowed

the copies of the signatures to be admitted into evidence so that

the jury could compare the signatures and draw their own

conclusions. This Court has repeatedly held that juries are

capable of comparing signatures to determine authenticity.13

Therefore, Garza was able to impeach Sanders even without the

expert testimony of Ms. James.

III. Remand in Light of U.S. v. Booker

13

See United States v. Ismolia, 100 F.3d 380, 387-88 (5th Cir.

1996); see also United States v. Wylie, 919 F.2d 969, 978 (5th Cir.

1990).

13

Garza argues that due process and ex post facto constitutional

concerns require that a defendant who committed a crime prior to

the Supreme Court’s opinion in United States v. Booker be sentenced

only according to Justice Stevens’ merits opinion and not Justice

Breyer’s remedy opinion.14 Garza was sentenced to 360 months

imprisonment in September 2004. Prior to his sentencing, Garza

objected to the Presentence Report, which called for a sentence

enhancement based upon obstruction of justice and being involved in

a conspiracy involving 500 grams or more of cocaine and 500 grams

or more of methamphetamine. Garza argues that these enhancements

were unconstitutional because he neither admitted to, nor did a

jury find beyond a reasonable doubt, the specific quantity of

drugs, or that he obstructed justice. The Presentence Report

placed Garza in the sentencing range of 360 months to life

imprisonment, and recommended 360 months. However, because Garza

claims that the district court was prohibited from enhancing

Garza’s sentence based upon the above facts, Garza insists that the

appropriate guideline range was 27 - 33 months of imprisonment.

In Booker, Justice Stevens wrote the merits opinion which

concluded that the jury trial requirements of the Sixth Amendment

apply to the federal sentencing guidelines.15 Therefore, Justice

Stevens concluded that “[a]ny fact (other than a prior conviction)

14

543 U.S. 220, 125 S.Ct. 738 (2005).

15

125 S.Ct. at 755.

14

which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”16 Justice Breyer wrote the remedies

portion of the Booker opinion, in which the Court invalidated

provisions of the Sentencing Reform Act that made the federal

sentencing guidelines mandatory.17 The Court concluded that the

sentencing guidelines are now advisory, which cures any Sixth

Amendment problem.18

Garza fails in his argument that, based on due process and ex

post facto concerns, only the merits portion of Booker applies to

his sentence. This Court has already rejected this ex post facto

argument in United States v. Scroggins.19 However, because Garza

objected to his sentence enhancements before the district court,

and those enhancements, based on facts not admitted to by Garza nor

found by a jury beyond a reasonable doubt, were imposed under a

mandatory sentencing scheme, Garza is entitled to have his sentence

vacated and remanded, unless the error was harmless.20 The burden

16

Id. at 756.

17

Id. at 756-769.

18

Id. at 757.

19

411 F.3d 572 (5th Cir. 2005).

20

See United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir.

2005).

15

of proof is on the Government to show that the error was harmless

by proving beyond a reasonable doubt that the error did not

contribute to the sentence received.21 The record reveals that, at

sentencing, when the district judge sentenced Garza to 360 months

imprisonment, he also orally imposed two alternative sentences in

anticipation of Booker. First, the court imposed “a discretionary

alternative sentence the same as that imposed under the guidelines

to become effective if the Supreme Court of the United States

declares the United States Sentencing Guidelines unconstitutional.”

Second, the court imposed “a further discretionary alternative

sentence, the same as that imposed under the guidelines to become

effective if the Supreme Court of the United States declares the

United States Sentencing Commission Guidelines constitutional but

requires all facts used in enhancing the sentence under the

sentencing guidelines to either be admitted – either admitted by

the Defendant of found by the jury beyond a reasonable doubt.”

The district court’s alternative sentences were not included

in the written judgment but were made orally. “[W]hen there is a

conflict between a written sentence and an oral pronouncement, the

oral pronouncement controls.”22 However, if there is “an ambiguity

between the two sentences, the entire record must be examined to

21

Id. at 285.

22

United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

16

determine the district court’s true intent.”23 In the case before

us, there is an ambiguity in the oral pronouncement itself, and we

cannot ascertain the district court’s true intent from an

examination of the record.

Keeping with this Circuit’s precedent, the trigger for the

first alternative sentence - the Guidelines being declared

unconstitutional in their entirety - did not occur. Therefore, the

first alternative sentence did not come into play.24 With regard

to the second alternative sentence, this Circuit has held in recent

cases that similarly worded alternative sentences were ambiguous.25

Similar to those cases, there is nothing in the record to suggest

that the district judge anticipated the remedial holding in Booker,

such that he considered the Guidelines as one factor among others

in determining Garza’s sentence.

Criminal sentences must “reveal with fair certainty the intent

of the court to exclude any serious misapprehensions by those who

must execute them.”26 Therefore, unclear or ambiguous sentences

must be vacated and remanded for clarification in “the interest of

23

Id.

24

See United States v. Story, 439 F.3d 226, 232-33 (5th Cir.

2006); see also United States v. Adair, 436 F.3d 520, 527 (5th Cir.

Jan. 13, 2006) (citing United States v. Walters, 418 F.3d 461 (5th

Cir. 2005)).

25

Id.

26

United States v. Daughtery, 269 U.S. 360, 363 (1926).

17

judicial economy and fairness to all concerned parties.”27 It is

unclear whether the district judge anticipated that the Supreme

Court would take the remedial measure of rendering the Guidelines

advisory rather than completely invalidating them.

CONCLUSION

Garza has not shown an abuse of discretion in any of the

district court’s evidentiary rulings. As such, he is not entitled

to a new trial on that basis. Further, we find that Garza’s

sentence is ambiguous, and we cannot simply remand for imposition

of the second alternative sentence. For the reasons stated above,

Garza’s conviction is AFFIRMED and his sentence is VACATED and

REMANDED for sentencing proceedings consistent with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

27

United States v. Patrick Petroleum Corp., 703 F.2d 94, 98 (5th

Cir. 1982); see also United States v. Walters, 418 F.3d 461 (5th

Cir. 2005)(remanding for resentencing where the court found

ambiguity in the lower court’s alternative sentences); United

States v. Garcia-Ortiz, 310 F.3d 792 (5th Cir. 2002)(“In light of

the ambiguity in the record, the best course is to remand the case

for reconsideration of the sentence.”)

18