United States v. Pielago

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.

16

Furthermore, 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