United States v. Rivas-Macias

A grand jury charged Defendant Jose Fernando Rivas-Macias with: (1) conspiracy to possess, with the intent to distribute, five hundred grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846; and (2) possessing, with the intent to distribute, five hundred grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). After a two-day trial, a petit jury convicted Defendant on both counts. Defendant raises two points of error on appeal.

First, Defendant argues the district court infringed his right to present a defense when it erroneously concluded that one of Defendant’s coconspirators, Alvaro Jimarez, retained his Fifth Amendment privilege against self-incrimination. Jima-rez pled guilty shortly before Defendant’s trial. Subsequently, at the time of Defendant’s trial, Jimarez’s sentencing had not yet occurred. Jimarez had, however, debriefed the government on several occasions, in an attempt to qualify for a sentence below the mandatory, statutory minimum under 18 U.S.C. § 3553(f). Defendant contends that by pleading guilty, and giving these unsworn statements, Jimarez waived his Fifth Amendment privilege. Consequently, Defendant claims the district court’s refusal to compel Jimarez to testify at his trial was in error.

Second, Defendant Rivas-Macias raises an alternative argument, suggesting the district court erred in failing, sua sponte, to continue his trial until after Jimarez’s sentencing. At that point, Defendant suggests, Jimarez’s Fifth Amendment privilege would no longer apply. Our jurisdiction over this appeal arises under 28 U.S.C. § 1291. Finding no merit to Defendant’s points of error, we affirm.

I.

United States Border Patrol agents took Defendant Rivas-Macias, and a group of four other adults, into custody on an isolated roadway near Hatch, New Mexico. The suspects were traveling in two vehicles: a maroon Taurus and a gold Accord. Defendant Rivas-Macias was seated in the backseat of the Accord. Alvaro Jimarez, the driver of the Accord, and his cousin occupied the front of the car. Traveling in the Taurus were Sergio Serra, the driver, along with his wife and two small children. Both drivers consented to a canine inspection of their respective vehicles. A canine alerted underneath the rear of the Taurus. Subsequently, a border patrol agent discovered an “after-market compartment” in that location, which had recently been covered in black spray paint. Thereafter, agents transported both vehicles, and their passengers, to a border patrol checkpoint for further investigation.

Inside the compartment, which was rigged with an electronic opening device, agents found seven bundles of cocaine wrapped in various substances. A canine inspection of the Honda resulted in the discovery of a similar compartment. Although the compartment in the Honda was empty, agents noted that it was lined with aluminum tape, which drug smugglers often use to insulate spaces in which drugs are stored. 1

II.

A grand jury charged Jimarez, Defendant Rivas-Macias, and Serra with possessing cocaine, with the intent to distribute, and conspiracy to possess cocaine, with the intent to distribute. Jimarez initially pled not guilty, but later entered an unconditional guilty plea. Serra entered *1275 into a plea agreement with the Government. Defendant Rivas-Macias pled not guilty and proceeded to trial.

Serra served as the Government’s primary witness against Defendant Rivas-Macias at trial. Serra testified that he asked Jimarez if Jimarez knew how Serra could make some money. Jimarez put Serra into contact with a man named Carlos. Serra subsequently made at least two trips to Denver for Carlos, once to transport cocaine and once to pick up a shipment of money that never materialized. During Serra’s first drug run to Denver, Defendant Rivas-Macias followed him in a separate vehicle. Defendant then led Serra to an apartment complex where he delivered the cocaine.

Serra testified that Defendant Rivas-Macias was again present when Carlos gave him the maroon Taurus, which Serra was driving when border patrol agents took him into custody. According to Serra, the conspirators planned for Serra to switch vehicles with Jimarez and Defendant near Hatch, New Mexico. Jimarez and Defendant Rivas-Macias would then take the Taurus — laden with cocaine — to Denver, while Serra and his family took the Honda on a legitimate business trip elsewhere. According to Serra, after authorities took Defendant Rivas-Macias and Serra into custody, Defendant warned Serra not to rat him out.

In order to rebut Serra’s testimony, Defendant Rivas-Macias took the stand in his own defense. Defendant stated that he met Jimarez at a party. On the night in question, Defendant explained that he believed he was traveling to Albuquerque, with Jimarez, to inquire about a construction job. Defendant disclaimed any knowledge of a man named Carlos and denied telling Serra not to incriminate him.

Faced with this conflicting testimony, the jury had to determine whether Serra or Defendant Rivas-Macias was the more credible witness. Based on the content of Jimarez’s debriefing statements, Defendant’s trial counsel had reason to believe that Jimarez’s version of events differed significantly from Serra’s. 2 Consequently, Defendant’s trial counsel planned to use Jimarez’s testimony to impeach Serra. Jimarez was, in fact, on the Government’s witness list. Before the Government called Jimarez to the stand, however, his attorney notified the district court that Jimarez would invoke his Fifth Amendment privilege against self-incrimination, if called to the stand. Faced with precedent stating that a party may not call a witness to the stand merely to compel him to invoke his Fifth Amendment privilege in front of the jury, the district court decided to examine Jimarez outside of the jury’s presence. 3 But Defendant’s trial counsel declined this course of action, indicating to the court: (1) the parties had agreed not to put Jimarez on the stand and (2) the Government planned to release Jimarez from its subpoena. 4 Subsequent *1276 ly, the district court did not examine Jima-rez concerning his invocation of the Fifth Amendment privilege. 5 Ultimately, neither party called Jimarez to the stand and the petit jury convicted Defendant Rivas-Macias on all counts.

III.

We first consider Defendant’s assertion that the district court erred in upholding Jimarez’s right to invoke his Fifth Amendment privilege against self-incrimination, thus infringing upon Defendant’s constitutional right to present a defense. 6 Our review of matters of eonstitu-tional law is de novo. See United States v. Dowlin, 408 F.3d 647, 659 (10th Cir.2005). Thus, we must take a “fresh, independent” look at the question at bar. Timmons v. White, 314 F.3d 1229, 1234 (10th Cir.2003).

A.

At the heart of this case lies two important constitutional values: (1) a witness’ privilege not to incriminate himself, and (2) a defendant’s right to establish a defense. 7 The former is grounded in the Fifth Amendment, which states that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” 8 *1277 U.S. Const, amend. V. The latter is predicated on the Sixth Amendment’s confrontation and compulsory process clauses, as well as the Fifth Amendment’s guarantee of due process. See United States v. Markey, 393 F.3d 1132, 1135 (10th Cir.2004). Here, we are faced with the tension that arises when these two pillars of our criminal justice system collide.

On the one hand, an individual’s privilege against self-incrimination, rooted in our society’s “traditional respect for the individual,” Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975), serves to ensure the continued vitality of our accusatorial system of justice. See Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976); see also Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (affirming that “ours is an accusatorial and not an inquisitorial system” of justice). The privilege safeguards against the recurrence of the evils associated with the Inquisition and the Star Chamber, see Michigan v. Tucker, 417 U.S. 433, 440, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), by ensuring the Government produces evidence sufficient to convict an individual through the “independent labor of its officers,” rather than the “simple cruel expedient of forcing” incriminating information from that individual’s own lips. 9 Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999).

Of course, an individual cannot avoid his duty to testify merely by voicing his own fears of self-incrimination and reciting the Fifth Amendment’s familiar terms. See Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Castro, 129 F.3d 226, 229 (1st Cir.1997). For the privilege to apply, an individual must face “some authentic danger” of self-incrimination. Castro, 129 F.3d at 229; see also Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972) (“It is well established that the privilege protects against real dangers, not remote and speculative possibilities.”); Ullmann v. United States, 350 U.S. 422, 439, 76 S.Ct. 497, 100 L.Ed. 511 (1956) (clarifying that the privilege’s “sole concern” is with the “danger to a witness forced to give testimony leading to the infliction of ‘penalties’ affixed” to “criminal acts”). When no further danger of incrimination is present, the privilege ceases to apply. See Mitchell, 526 U.S. at 326, 119 S.Ct. 1307; see also Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 40 L.Ed. 819 (1896) (stating the prohibition against an individual being “compelled to testify against himself presupposes a legal detriment to the witness arising from the exposure”). Accordingly, the privilege generally remains available, absent a valid waiver, until an individual’s “sentence has been fixed and the judgment of conviction has become final.” Mitchell, 526 U.S. at 326, 119 S.Ct. 1307; see also Maness, 419 U.S. at 466, 95 S.Ct. 584 (noting an individual may waive the privilege); Rogers v. United States, 340 U.S. 367, 373-74, 71 S.Ct. 438, 95 L.Ed. 344 (1951) (same).

On the other hand, a defendant’s right to present a defense is also a keystone of our legal system. See United States v. Hernandez-Hernandez, 519 F.3d 1236, 1238 (10th Cir.2008). Indeed, few rights are more fundamental than a defendant’s right to testify, present witnesses in his own defense, and cross-examine witnesses against him. See id. at 1239; Mar *1278 key, 393 F.3d at 1135. We have repeatedly recognized, however, that the right to present a defense, “while fundamental, is not absolute.” Hernandez-Hernandez, 519 F.3d at 1238; see also United States v. Serrano, 406 F.3d 1208, 1215 (10th Cir.2005); Markey, 393 F.3d at 1135; United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir.1998). In appropriate cases, a defendant’s right to present a defense must bow to accommodate legitimate, competing interests in the criminal trial process. See Serrano, 406 F.3d at 1215. Traditional testimonial privileges — including the Fifth Amendment privilege against self-incrimination — represent legitimate trial interests sufficient to force a defendant’s right to present a defense to give way. 10 See id.; Valdez v. Winans, 738 F.2d 1087, 1089 (10th Cir.1984). Accordingly, if Jimarez retained his Fifth Amendment privilege against self-incrimination, Defendant cannot establish that his right to present a defense was unduly impaired.

B.

Defendant Rivas-Macias contends the Fifth Amendment privilege was not available to Jimarez after he pled guilty and gave several unsworn, debriefing statements to authorities prior to Defendant’s trial. Whether an individual may properly invoke the privilege against self-incrimination is a question of law, which we review de novo. See United States v. Bautista, 145 F.3d 1140, 1150 (10th Cir.1998). In this case, to determine whether the privilege was available to Jimarez we must ascertain: (1) whether Jimarez faced some authentic danger of further incriminating himself by testifying at Defendant’s trial before his sentencing, and (2) whether Jimarez waived his Fifth Amendment privilege by giving several unsworn, debriefing statements to authorities in an effort to qualify for a sentence below the mandatory minimum prescribed by statute. See 18 U.S.C. § 3553(f).

1.

We first examine whether Jim-arez faced some authentic danger of self-incrimination in testifying, before his sentencing, at Defendant’s trial. The Supreme Court has “broadly construed” the protection afforded by the Fifth Amendment privilege. Maness, 419 U.S. at 461, 95 S.Ct. 584; see also Hoffman, 341 U.S. at 486, 71 S.Ct. 814 (instructing lower courts to give the privilege a “liberal construction”). As a result, the constitutional guarantee against testimonial compulsion extends not only to “answers that would in themselves support a conviction,” Hoffman, 341 U.S. at 486, 71 S.Ct. 814, but also to information that would “furnish a link in the chain of evidence that could lead to prosecution.” Maness, 419 U.S. at 461, 95 S.Ct. 584.

Not much is required, therefore, to show an individual faces some authentic danger of self-incrimination, see Castro, 129 F.3d at 229, as the privilege “extends to admissions that may only tend to incriminate.” Emspak v. United States, 349 U.S. 190, 197, 75 S.Ct. 687, 99 L.Ed. 997 (1955) (emphasis added). Accordingly, an individual does not lose his right to claim the Fifth Amendment privilege merely because “a successful prosecution is unlikely to add to the punishments” he already faces for “other crimes.” United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir.1984). To the contrary, we will uphold an individual’s invocation of the privilege against self-incrimination unless *1279 it is “perfectly clear, from a careful consideration of all the circumstances in the case,” that the witness “is mistaken” and his answers could not “possibly have” a “tendency to incriminate.” Hoffman, 341 U.S. at 488, 71 S.Ct. 814; see also Castorena-Jaime, 285 F.3d 916, 931 (10th Cir.2002); United States v. Nunez, 668 F.2d 1116, 1121 (10th Cir.1981).

Defendant Rivas-Macias cannot establish, with perfect clarity, that Jima-rez’s testimony at Defendant’s trial would have had no tendency to further incriminate him. The Supreme Court has recognized that an individual whose sentence “has not yet been imposed” has a “legitimate fear of adverse consequences” from testifying in a related judicial proceeding. Mitchell, 526 U.S. at 326, 119 S.Ct. 1307. Consequently, the law is clear that the Fifth Amendment privilege applies at sentencing. 11 See id. at 326-27, 119 S.Ct. 1307; see also United States v. Garcia, 78 F.3d 1457, 1463 (10th Cir.1996). Indeed, the privilege against testimonial compulsion normally extends to an individual until his or her “sentence has been fixed and the judgment of conviction has become final.” Mitchell, 526 U.S. at 326, 119 S.Ct. 1307. Because Jimarez faced an authentic danger of further incriminating himself by testifying at Defendant’s trial, we conclude he properly invoked the Fifth Amendment privilege against self-incrimination. 12 See United States v. Bahadar, 954 F.2d 821, 824 (2d Cir.1992) (discussing the dangers an individual, who pled guilty, would face by testifying at the trial of a co-defendant before his sentencing).

2.

Next, we must determine whether Jimarez waived his Fifth Amendment privilege by pleading guilty and giving several unsworn, debriefing statements to the *1280 Government prior to Defendant’s trial. An individual may lose the right to claim the Fifth Amendment privilege in three distinct ways. First, because the privilege “is not a self-executing mechanism; it can be affirmatively waived, or lost” if an individual fails to assert it “in a timely fashion.” Ma ness, 419 U.S. at 466, 95 S.Ct. 584; see also Emspak, 349 U.S. at 196, 75 S.Ct. 687 (noting “the privilege against self-incrimination must be claimed”). Here, Defendant does not dispute that Jimarez timely claimed the Fifth Amendment privilege.

Second, the privilege may also dissipate if the Government gives the individual immunity, such that he is protected from the “use of his compelled answers” and all “evidence derived therefrom in any subsequent criminal case in which he is a defendant.” Lejkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). The Government did not grant Jimarez such immunity here. Third, an individual may lose his right to claim the privilege if, in a single proceeding, he voluntarily testifies about a subject and then invokes the privilege when asked to disclose the details. 13 See Mitchell, 526 U.S. at 321, 119 S.Ct. 1307; Rogers, 340 U.S. at 372-73, 71 S.Ct. 438; United States v. Constantine, 263 F.3d 1122, 1128 n. 4 (10th Cir.2001); Nunez, 668 F.2d at 1121 n. 2. In such cases, the “privilege is waived for the matters to which the witness testifies, and the scope of the waiver is determined by the scope of relevant cross-examination.” Mitchell, 526 U.S. at 321, 119 S.Ct. 1307; see also Constantine, 263 F.3d at 1128 n. 4. But see Emspak, 349 U.S. at 198, 75 S.Ct. 687 (recognizing that courts must “indulge every reasonable presumption against” a testimonial waiver of the Fifth Amendment privilege).

The Supreme Court has explained that pleading guilty to a crime is not analogous to the type of selective admission capable of waiving the privilege against self-incrimination. See Mitchell, 526 U.S. at 322-23, 119 S.Ct. 1307. Far from voluntarily putting a matter into dispute and then attempting to invoke the privilege against testimonial compulsion, an individual who pleads guilty to a crime takes “matters out of dispute” by “confirming the prosecution’s version of the facts.” Id. at 323, 119 S.Ct. 1307. We thus squarely reject the proposition that an individual waives the Fifth Amendment privilege by pleading guilty to a crime. See id. at 321, 119 S.Ct. 1307; Garcia, 78 F.3d at 1463.

That leaves Defendant’s claim that Jimarez’s unsworn statements to authorities, prior to Defendant’s trial, waived his right to claim the Fifth Amendment privilege, at least to the extent of his revelations to the Government. A witness’ testimonial waiver of the privilege is only effective, however, if it occurs in the same proceeding in which a party desires to compel the witness to testify. See Constantine, 263 F.3d at 1128 n. 4 (“It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.”) (emphasis added) (quoting Mitchell, 526 U.S. at 321, 119 S.Ct. 1307). Because Jimarez refused to testify at Defendant Rivas-Macias’ trial, the proceeding at issue here, Defendant cannot establish that Jimarez engaged in a testimonial waiver of the privilege. 14

*1281 Defendant’s argument to the contrary is unpersuasive. The privilege against self-incrimination protects against a party forcing an individual to adopt, at trial, “his unsworn out-of-court confession.” Silverstein, 732 F.2d at 1347; see also United States v. James, 609 F.2d 36, 45 (2d Cir.1979) (ruling that an individual “had not waived his privilege” by making “previous statements to the FBI and the grand jury” because a “waiver of the privilege in one proceeding does not affect a witness’ rights in another proceeding”); United States v. Diecidue, 603 F.2d 535, 552 (5th Cir.1979) (holding an individual’s “admission to a Government agent prior to trial that he had previously committed perjury did not waive his privilege to invoke the Fifth Amendment as to that matter” at trial). That is exactly what Defendant Rivas-Macias seeks to do here, ie., force Jimarez, at Defendant’s trial, to adopt his unsworn, out-of-court admissions. We, therefore, have little difficulty in concluding Jimarez properly invoked the Fifth Amendment privilege.

IV.

Defendant Rivas-Macias also contends the district court erred in failing, sua sponte, to continue his trial until after Jimarez’s sentencing. Because Defendant failed to request a continuance below, we review only for plain error. See United States v. Barrett, 496 F.3d 1079, 1090 (10th Cir.2007). Under this standard, even if a defendant demonstrates an error that is plain, we may only take corrective action if that error not only prejudices the defendant’s substantial rights, but also seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Vigil, 523 F.3d 1258, 1264 (10th Cir.2008). Here, we are unable to discern any error, plain or otherwise.

District courts necessarily possess “broad discretion” in deciding whether to grant a party’s request for a continuance. United States v. Flanders, 491 F.3d 1197, 1216 (10th Cir.2007). Accordingly, we review the district court’s determination in this regard for an abuse of discretion. See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir.2007). Our practice is thus to uphold the district court’s ruling unless we conclude its decision was (1) “arbitrary or unreasonable” and (2) “materially prejudiced” the movant. Id.

Defendant cites no authority, and we have found none, suggesting a district court is required, sua sponte, to continue a defendant’s trial until a witness invoking the Fifth Amendment privilege has been sentenced. Absent extraordinary circumstances, our adversarial system of justice imposes “an abiding duty” on each party to take the legal steps “necessary to protect his or her own interests.” 15 Cotto v. United States, 993 F.2d 274, 278 (1st Cir.1993); see also Ackermann v. United States, 340 U.S. 193, 197, 71 S.Ct. 209, 95 L.Ed. 207 (1950) (describing a defendant’s “duty to take legal steps to protect his interest in litigation in which the United States was a *1282 party adverse to him”). No extraordinary circumstances exist, which justify relieving Defendant Rivas-Macias of that duty here. Because we cannot say, under these circumstances, that the district court’s refusal to grant a continuance, sua sponte, was arbitrary or unreasonable, we reject Defendant’s claim of error.

AFFIRMED. 16