U.S. v. Hernandez ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-4502
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RALPH HERNANDEZ,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
______________________________________________
(June 3, 1992)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Ralph Hernandez (Hernandez) appeals his
conviction, following a jury trial, of one count of conspiracy to
distribute marihuana and four counts of possession of marihuana
with intent to distribute. He challenges the sufficiency of the
evidence, complains of the denial of his request for a severance,
claims a fatal variance between the indictment and the evidence,
and contends that a witness was improperly allowed to assert her
privilege against self-incrimination. He also challenges his
sentence. We affirm.
Facts and Proceedings Below
In January 1989, the police in Plano, Texas began an
investigation of a man named John Bass (Bass) on suspicion of drug
trafficking. Their investigation entailed almost daily
surveillance during the early months of 1989.
On the afternoon of April 4, 1989, Bass left his home and
drove a pickup truck to the parking lot of a local Bennigan's
restaurant. A short time later a woman arrived in a rented Ryder
van. Bass got into the passenger side of the van and conversed
with the driver, whom the police later determined to be Denise Pero
(Pero). Soon thereafter a white Lincoln Continental pulled into
the parking lot, and Bass went over to talk with the driver, later
determined to be defendant-appellant Hernandez. Bass then got back
into his pickup truck and drove away. Hernandez got into the van
with Pero, and they drove to a Holiday Inn in McKinney, Texas,
about fifteen miles north of Plano.
About ten minutes later, Bass arrived driving the pickup
truck. Pero dropped Hernandez off at the Holiday Inn, and followed
Bass further northward on the highway. About five miles away, they
stopped at a service station, filled the vehicles with gas, and
switched vehicles: Bass continued on in the Ryder van, and Pero
drove back toward McKinney in Bass's pickup truck. Bass drove the
van to a ranch near Trenton, Texas belonging to his brother-in-law
Scott King (King), and pulled the van into King's garage. When
Bass left King's house and drove the van back onto the highway, the
police arrested him and took custody of the van. They detected a
strong odor of raw marihuana in the van and found a partially
2
smoked marihuana cigarette in the ash tray. In the back of the van
were a suitcase and a cardboard box sealed with duct tape. After
obtaining a search warrant, they opened the box in the back of the
van and found a set of heavy-duty scales. In the suitcase were a
number of smaller duffel-type bags. The police obtained and
executed a search warrant on King's residence in the early morning
hours of April 5. They found in the garage eight large boxes
containing marihuana--with a total net weight of slightly less than
300 pounds--and another large triple-beam scale. In the house
itself they found $8,050 in currency, several loaded handguns, and
several plastic bags containing marihuana. Pero and Hernandez were
arrested in the Bennigan's parking lot on the evening of April 4.
Bass cooperated with the government and provided information
about his drug trafficking activities dating back to 1986.
On August 15, 1990, Hernandez and eight other persons,
including Pero, were named in a 35-count indictment. Hernandez was
named in five counts: (1) Count 1, charging all nine defendants
with conspiring, from October 1986 to the date of the indictment,
to distribute, and possess with intent to distribute, in excess of
1,000 kilograms of a substance containing a detectable amount of
marihuana, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(vii); (2) Count 6, charging Hernandez and Pero with
possession with intent to distribute, and distribution of, between
180 and 200 pounds of marihuana on or about November 29, 1988; (3)
Count 11, charging Hernandez, Pero, and two others with possession
with intent to distribute, and distribution of, 200 pounds of
marihuana on or about January 29, 1989; (4) Count 14, charging
3
Hernandez, Pero, and one other defendant with possession with
intent to distribute, and distribution of, 200 pounds of marihuana
on or about March 9, 1989; and (5) Count 16, charging Hernandez and
Pero with possession with intent to distribute, and distribution
of, approximately 315 pounds of marihuana on or about April 4,
1989.
By the time of trial, Pero and several others named in the
indictment had entered into plea agreements, and Hernandez was
tried jointly with four codefendants. The district court denied
his pretrial motion for a severance. Bass's trial testimony
described the overall operations of the conspiracy. He testified
that marihuana brought into the country in El Paso was brought by
courier to him in Plano (a small town near Dallas). Bass utilized
a number of locations, including the rural homes of King and of one
Fred Harrington (Harrington), to inspect and weigh the marihuana,
and to store it until it could be sold to various persons who
distributed it in Ohio, Indiana, and Mississippi. Bass testified
that in the spring of 1988 Pero called him and told him that she
could bring some marihuana to Dallas, if he was interested in
selling it. Bass was receptive, because he was experiencing
difficulties with one of his regular suppliers, and he began to
purchase marihuana regularly from Pero. He testified that on one
occasion in September or October of 1988 she was accompanied by
Hernandez, whom Pero said worked for the man who actually owned the
marihuana and was there to ensure that all of the money was paid
and returned safely to the owner. Hernandez helped load the
marihuana into Bass's car on that occasion. Bass testified that
4
thereafter during the fall of 1988, Hernandez accompanied Pero
several times on the drug transactions, that he participated in the
delivery of the marihuana, and that on at least one occasion Bass
paid Hernandez directly.
Bass stated that on the day of his arrest, April 4, 1989, he
had met with Pero and Hernandez at the Bennigan's restaurant and
told them to go to the Holiday Inn in McKinney. At the Holiday Inn
he suggested to Pero that in order to avoid attracting attention,
Hernandez remain there while the two of them drove the van
containing the marihuana to King's ranch.
After the seventh day of the trial, at which point Bass was
testifying for the government during its case-in-chief, Hernandez's
four codefendants pleaded guilty. At the beginning of the court
proceedings the next morning, the district court instructed the
jury as follows:
"Ladies and gentlemen of the jury, you will notice
that the Defendants, Fred Joseph Harrington, Brigitte
Gaon Harrington, Stanley Diers and Morris Patterson are
no longer present in Court.
The reason these Defendants are not [sic] longer
present here in Court is because of a ruling made by this
Court. The reasons for the Court's ruling are not your
concern. The absence of these Defendants should not be
considered by you as affecting in any way your
determination of the guilt or innocence of the Defendant,
Ralph Hernandez who remains in Court."
A short time later, Hernandez unsuccessfully moved for a mistrial,
arguing that notwithstanding the court's instruction, it was
perfectly clear to the jury that the other defendants had pleaded
guilty, and that it unfairly prejudiced his defense.
Pero also testified for the government at the trial. She
5
stated that an acquaintance of hers named Henry Barragan (Barragan)
had told her in early 1988 that he was going to have marihuana at
his disposal in Dallas, and that he was looking for someone to sell
it for him. Pero, who had met Bass through her ex-husband's drug
activities, called Bass for this reason and arranged the initial
sale. She testified that Barragan told her on this initial
occasion that he had 50 pounds of marihuana for her and 50 pounds
for someone else, whom she learned to be Hernandez when Barragan
introduced them in the spring of 1988. She and Hernandez flew to
Dallas together and checked into a hotel. The marihuana was driven
to Dallas by Barragan's brother and delivered to them at the hotel.
Bass came to the hotel and purchased the 50 pounds from Pero.
Hernandez then asked Pero if she could also sell his 50 pounds to
Bass, so Pero called Bass again, and Bass returned to the hotel and
purchased the second 50 pounds from Pero.
Pero testified that she and Hernandez continued to make
periodic trips to Dallas to sell marihuana to Bass throughout 1988
and spring of 1989, and that on those occasions Bass and Hernandez
met face-to-face, and Bass paid both of them for their marihuana.
On a few occasions, King came to meet them instead of Bass. She
and Hernandez always flew to Dallas, and a third person would drive
the marihuana from El Paso to Dallas and deliver it to them. Pero
testified that the driver was frequently Barragan's cousin Teresa
Chavez (Chavez). On a few occasions, Pero and Hernandez went to
Dallas simply to pick up from Bass money Bass owed to Barragan from
a previous marihuana transaction. Credit card slips produced by
the government earlier at trial established the dates of these
6
trips by Pero and Hernandez as those charged in the indictment.
Pero testified that on April 4, 1989, she and Hernandez had
come to Dallas to sell 300 pounds of marihuana belonging to
Hernandez. She stated that at Hernandez's direction they went to
a convenience store, where they met two men who had driven the
Ryder van containing the marihuana from El Paso, and that Hernandez
instructed her to drive the van to the Bennigan's in Plano to meet
Bass.
At the beginning of Hernandez's defense, his attorney informed
the court that he wished to call Chavez as a witness. Chavez had
pleaded guilty to one count of interstate travel in aid of a
racketeering enterprise (18 U.S.C. § 1952) charged in the
indictment, and was awaiting sentencing. Hernandez's attorney
later informed the court that after conferring with Chavez's
attorney, he believed that Chavez intended to invoke her Fifth
Amendment privilege against self-incrimination. The court called
Chavez to the stand, and she informed the court that on advice of
counsel she would exercise her privilege against self-incrimination
if summoned to testify. Defense counsel then proffered the
questions he intended to ask Chavez and argued that given the
limited scope of his questioning, she could not have a valid Fifth
Amendment right to refuse to answer. The district court disagreed
and excused Chavez.
The jury convicted Hernandez on all counts. The presentence
report (PSR) on Hernandez calculated a base offense level of 28 and
recommended a three-level upward adjustment under U.S.S.G. §
3B1.1(b) for Hernandez's role as a supervisor in the charged
7
offenses. Hernandez objected to the three-level increase on the
basis that the trial evidence showed him merely to have been an
accomplice to Pero. The district court overruled Hernandez's
objection, adopted the PSR's calculation of a total offense level
of 33,1 and sentenced Hernandez to concurrent terms of 135 months'
imprisonment and a five-year period of supervised release on each
count of conviction. Hernandez brings this appeal.
Discussion
I. Sufficiency of the Evidence
Hernandez first challenges the sufficiency of the evidence.
Because he failed to move for a judgment of acquittal at any stage
of the trial, we review the sufficiency of the evidence only to
determine whether affirmance of his conviction would result in a
manifest miscarriage of justice. United States v. Pruneda-
Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).
For his conviction under Count 1 of the indictment, Hernandez
argues that other than the testimony of Bass and Pero, who were
testifying for the government in exchange for leniency, there was
nothing to show that he was involved in a conspiracy to distribute
marihuana; the police were only able to corroborate Bass and Pero's
account with credit card receipts showing that Hernandez had
travelled to Dallas, not with evidence independently showing that
he had engaged in illegal activity.
There is no requirement that testimony by a co-conspirator
1
The PSR also recommended, and the district court adopted, a
two-level increase for obstruction of justice that is not at
issue in this appeal.
8
fulfilling a plea bargain be corroborated by independent evidence.
The jury is entrusted with the responsibility of evaluating the
witness's credibility, and uncorroborated testimony of a co-
conspirator will sustain a guilty verdict unless, as is not the
case here, the testimony is incredible or otherwise insubstantial
on its face. United States v. Osum, 943 F.2d 1394, 1405 (5th Cir.
1991); United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir.
1987).
In the present case, the existence of plea agreements by Bass
and Pero was fully disclosed to the jury during direct examination
of those witnesses, and the jury was instructed that testimony from
an alleged accomplice who has entered into a plea agreement "is
always to be received with caution and weighed with great care,"
and that "[y]ou should never convict a Defendant upon the
unsupported testimony of an alleged accomplice unless you believe
that testimony beyond a reasonable doubt." The jury nonetheless
credited Bass and Pero's version of events, a decision we will not
disturb, because their testimony was far from incredible or
insubstantial. Bass and Pero's testimony was more than sufficient
to establish the requisite elements for a conspiracy conviction
under 21 U.S.C. § 846, i.e., (1) the existence of an agreement
between two or more persons to violate the narcotics laws, (2) that
Hernandez knew of the agreement and intended to join it, and (3)
that Hernandez did participate in the conspiracy. See, e.g.,
United States v. Juarez-Fierro, 935 F.2d 672, 677 (5th Cir.), cert.
denied, 112 S. Ct. 402 (1991).
Hernandez challenges his convictions for the substantive
9
counts of possession with intent to distribute primarily on the
same basis--that they rest on the uncorroborated testimony of Bass
and Pero. For the reasons set forth above, this argument is
unavailing. Hernandez also notes that neither Bass nor Pero was
specific as to the dates when the supposed transactions took place.
Although he is correct that in many cases Bass or Pero could recall
only a general time frame for the transactions, the jury was aided
by the credit card records and hotel receipts showing exactly when
Pero and Hernandez had travelled to Dallas. Moreover, when the
indictment uses the "on or about" terminology employed in this
case, the prosecution is not obligated to prove the precise date of
the offense. See United States v. Tunnell, 667 F.2d 1182, 1186
(5th Cir. 1982).
Hernandez has demonstrated no possibility of a manifest
miscarriage of justice in affirmance of his convictions based on
the evidence produced at trial. Indeed, the evidence was clearly
more than sufficient to sustain the convictions under any standard.
II. Denial of Severance
Hernandez next argues that the joinder of his case with those
of the codefendants was prejudicial, and that the district court
therefore erred in denying his motion for severance, made pursuant
to Federal Rule of Criminal Procedure 14. The basis for his
argument is that his codefendants were people such as Harrington
who cooperated with Bass in storing the drugs in the Dallas area
and preparing them for distribution and resale, and that Hernandez
never had any occasion to deal directly with them or conspire with
them for any common purpose.
10
The decision of whether to sever the trials of persons who are
indicted together is within the discretion of the trial court, and
the denial of a severance will not furnish grounds for reversal
unless the defendant can demonstrate specific compelling prejudice
against which the district court was unable to afford protection.
United States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir.
1991), petition for cert. filed (1-23-92); United States v. Massey,
827 F.2d 995, 1004 (5th Cir. 1987). Any possible prejudice must,
moreover, be balanced against the public's interest in efficient
judicial administration. United States v. Lindell, 881 F.2d 1313,
1319 (5th Cir. 1989), cert. denied, 110 S. Ct. 2621 (1990); United
States v. Fortna, 796 F.2d 724, 737 (5th Cir.), cert. denied, 107
S. Ct. 437 (1986).
Hernandez's general assertions of prejudice arising from the
joinder with other co-conspirators fall well short of the required
showing of specific and compelling prejudice. Although we have
recognized the possibility of prejudice from a "spillover effect"
if there is "a quantitative and qualitative disparity in the
evidence among the co-defendants," United States v. Rocha, 916 F.2d
219, 228 (5th Cir. 1990), cert. denied, 111 S. Ct. 2057 (1991),
Hernandez has not demonstrated such a disparity. Indeed, he does
not base his argument on any specific evidence admitted at trial
that would have been inadmissible against him alone. Limited
involvement in a conspiracy does not by itself entitle a defendant
to severance. Id.; Fortna, 796 F.2d at 738. Although he claims
that he was prejudiced by the mid-trial withdrawal of the other
defendants, he again fails to specify how that prejudice arose, and
11
we find no support for that view in the record. The district court
gave an explanation for the departure of the other defendants that
was calculated to prevent prejudice to Hernandez, and the jury was
also instructed before retiring that "[t]he Defendant is not on
trial for any act, conduct or offense or offenses not alleged in
the indictment," and that the jury should not be "concerned with
the guilt or [sic] any other person or persons not on trial as a
Defendant in this case." The court further instructed the jury
that once a defendant was determined to have been part of a
conspiracy, acts done in knowing furtherance of the conspiracy were
evidence against him even if he had not been aware of them, but
that the jury had to make the initial determination of membership
in the conspiracy based solely on the particular evidence against
the defendant:
"In determining whether a Defendant was a member of an
alleged conspiracy, however, you should consider only the
evidence, if any, pertaining to his own acts and
statements. He is not responsible for the acts or
declarations of other alleged participants until it is
established beyond a reasonable doubt first that a
conspiracy existed, and second, that the Defendant was
one of the members."
Hernandez has failed to demonstrate how these precautions by the
district court were ineffective to protect him against prejudice,
and accordingly he has demonstrated no abuse of discretion in the
district court's refusal to sever the cases initially or grant a
mistrial after the guilty pleas of his codefendants.
III. Material Variance
At trial Hernandez requested an instruction clarifying the
government's burden to prove the single conspiracy alleged in the
12
indictment. His requested instruction read in part as follows:
"In order to sustain its burden of proof for this
charge, the government must show that the single
conspiracy alleged in Count 1 of the indictment existed.
Proof of separate or independent conspiracies is not
sufficient.
. . . .
Even if the evidence in the case shows that
Defendant was a member of some conspiracy, but that this
conspiracy is not the single conspiracy charged in the
indictment, you must acquit Defendant.
Unless the government proves the existence of the
single conspiracy described in the indictment beyond a
reasonable doubt, you must acquit Defendant."
The district court declined the requested instruction and overruled
Hernandez's objection to its omission. The instructions given to
the jury did not address the question of multiple conspiracies.
Hernandez contends on appeal that the instructions permitted
conviction despite a material variance between the single
conspiracy alleged in the indictment and the multiple conspiracies
he claims were shown by the evidence at trial.
We have held that a variance between the offense charged in
the indictment and the proof relied upon at trial constitutes
reversible error if it affects the substantial rights of the
defendant. United States v. Lokey, 945 F.2d 825, 832 & n.1 (5th
Cir. 1991); United States v. Guerra-Marez, 928 F.2d 665, 671 (5th
Cir.), cert. denied, 112 S. Ct. 322 (1991). The concerns underlying
our cases on variance are to ensure that the indictment notifies a
defendant adequately to permit him to prepare his defense, and does
not leave the defendant vulnerable to a later prosecution because
of failure to define the offense with particularity. Lokey, 945
13
F.2d at 832-33; United States v. Richerson, 833 F.2d 1147, 1155
(5th Cir. 1987). In cases dealing with an alleged variance between
a single-conspiracy indictment and evidence showing multiple
conspiracies, this concern focuses on the danger of transference of
guilt, i.e., the danger that despite demonstrating his lack of
involvement in the conspiracy described in the indictment, a
defendant may be convicted because of his association with, or
conspiracy for other unrelated purposes with, codefendants who were
members of the charged conspiracy. See Guerra-Marez, 928 F.2d at
672; Richerson, 833 F.2d at 1155. Accordingly, a multiple
conspiracy instruction forcefully reminds the jury that it must
acquit the defendant if it concludes that he was not a member of a
conspiracy charged against him, even if it finds that he was a
member of an uncharged conspiracy. See Guerra-Marez, 928 F.2d at
672 n.7; United States v. Toro, 840 F.2d 1221, 1236 (5th Cir.
1988).
In the present case, several factors minimize the concern that
transferred guilt contributed to the jury's guilty verdict for
Hernandez. First, Hernandez's defense at trial was not directed to
establishing the separateness of his dealings with Bass from any of
Bass's other operations; the defense that Hernandez presented for
the jury to accept or reject was that he had never had any knowing
involvement in any marihuana or other drug trafficking and was not
a part of any conspiracy. Second, because all of the other
defendants had dropped out of the case before the government's
case-in-chief was completed, there is strong reason to presume that
the jury's attention was properly focused only on Hernandez's
14
conduct when the case was submitted to it.
Hernandez argues on appeal that the government proved only a
series of component conspiracies between Bass and his various
suppliers and distributors, but that no reasonable jury could have
inferred a single agreement among the various codefendants. We
disagree. Whether the evidence shows one or multiple conspiracies
is a factual determination principally based on three factors: (1)
the existence of a common goal or purpose, (2) the nature of the
scheme, and (3) overlapping of participants in the various
dealings. Guerra-Marez, 928 F.2d at 671; Richerson, 833 F.2d at
1153. Hernandez's protestation that he had no dealings with some
of his codefendants, even if correct, is not dispositive: the
overlapping of participants contemplated by the factors above may
be fulfilled if a pivotal figure such as Bass directs and organizes
the illegal activity and has extensive dealings with each of the
parties. See Lokey, 945 F.2d at 833; United States v. DeVarona,
872 F.2d 114, 119 (5th Cir. 1989); Richerson, 833 F.2d at 1154.
Moreover, the consideration that this Court found decisive in
Lokey, DeVarona, and Richerson--whether the activities of one
aspect of the scheme were necessary to or advantageous to the
success of other aspects or of the overall venture--is present in
this case. As must have been obvious to Hernandez, Bass's
willingness and ability to pay him cash for large quantities of
marihuana in their frequent sales depended upon Bass's continued
ability to steadily move the marihuana further along in the chain
15
toward the eventual consumer.2
That the evidence supported the existence of a single
conspiracy, however, does not necessarily preclude the possibility
that a jury could rationally have found multiple conspiracies to be
present, and thus does not necessarily resolve the issue of the
district court's refusal to give the requested jury instruction; a
defendant is generally entitled to an instruction on any defensive
theory for which the evidence is sufficient for a reasonable jury
to rule in favor of the defendant on that theory. United States v.
Stowell, 953 F.2d 188, 189 (5th Cir. 1991) (per curiam), cert.
denied, 112 S. Ct. 1269 (1992); see also United States v. Erwin, 793
F.2d 656, 663 (5th Cir.), cert. denied, 107 S. Ct. 589 (1986).
However, we are not convinced that the refusal here warrants
reversal. For a refusal to give a requested jury instruction to
constitute reversible error, the instruction (1) must have been
substantially correct, (2) must not have been substantially covered
in the charge given to the jury, and (3) must have concerned an
2
In this context, the claim that any possible variance from a
single-conspiracy indictment prejudiced Hernandez's substantial
rights is very weak. We have already noted that there was no
meaningful "transference of guilt" risk. Further, even assuming
arguendo that the trial evidence would have supported the
conclusion that the transportation of the marihuana to Plano and
its sale to Bass was accomplished pursuant to a separate
conspiracy from the one by which Bass stored the marihuana in the
Dallas area and transferred it for distribution in other regions
of the country, the two (or multiple) conspiracies had the same
criminal objective, and their members would have been subject to
prosecution for the same offense. In other words, this is not a
case where Hernandez's possible inclusion in a larger conspiracy
exposed him, through the vicarious liability doctrine of
Pinkerton v. United States, 66 S. Ct. 1180 (1946), to prosecution
for an offense more severe than that chargeable against him as a
member solely of the smaller conspiracy.
16
important issue so that the failure to give it seriously impaired
the defendant's ability to present a given defense. United States
v. Allison, 953 F.2d 870, 876 (5th Cir. 1992); United States v.
Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir. 1988). As noted
above, the absence of an instruction on multiple conspiracies did
not seriously impair Hernandez's ability to present, as he did
through his own testimony, his already chosen defense of total lack
of involvement in any conspiracy or criminal conduct whatever.
Further, under the evidence and with the case in the posture that
it was when it went to the jury, it is simply inconceivable that
the jury would have failed to convict Hernandez for his conspiracy
with Bass and Pero but would have nevertheless at the same time
found him guilty of being a member of some separate conspiracy
between Bass and out of state distributors no part of which
included Hernandez's marihuana dealings with Bass and Pero. So far
as the evidence showed, Hernandez was either guilty of nothing or
guilty of being a member of a marihuana distribution conspiracy
that included himself, Bass, Pero and others. No uncharged third
alternative was suggested by the evidence. Moreover, it is highly
questionable whether Hernandez's proposed instruction was
substantially correct. The instruction quoted above did not
adequately explain that proof of separate or independent
conspiracies did not mandate acquittal so long as one of those
conspiracies fit the description contained in the indictment, and
Hernandez's participation in that conspiracy was established by the
evidence. See Guerra-Marez, 928 F.2d at 671-72.
We conclude that because the evidence so strongly supported a
17
finding of a single conspiracy, and because under these facts any
arguable variance from the indictment could not have prejudiced
Hernandez's substantial rights, Hernandez's claim of a material
variance is unavailing. We further conclude that because his
requested jury instruction was not substantially correct, and
because its absence did not seriously impair the defense presented
at trial, it was not reversible error for the district court to
refuse to give Hernandez's instruction.3
IV. Chavez's Invocation of the Fifth Amendment
Hernandez's fourth claim of error is that the district court
erroneously permitted Chavez to invoke the Fifth Amendment,
because, having entered a guilty plea, Chavez no longer enjoyed a
privilege against self-incrimination.
It is well settled that a defendant's Sixth Amendment right of
compulsory process to obtain witnesses in his favor must yield to
a witness's Fifth Amendment privilege against self-incrimination.
See, e.g., Roussell v. Jeane, 842 F.2d 1512, 1516 (5th Cir. 1988);
United States v. Khan, 728 F.2d 676, 678 (5th Cir. 1984). The
trial judge, moreover, "necessarily is accorded broad discretion in
determining the merits of a claimed [Fifth Amendment] privilege."
United States v. Lyons, 703 F.2d 815, 818 (5th Cir. 1983).
3
It is also doubtful that Hernandez has adequately presented
on appeal any complaint of the denial of his requested
instruction. No claimed instructional error is listed in the
statement of the issues in his brief, nor is any mentioned in his
summary of the argument or in any of the argument headings in his
brief. The matter is mentioned only in the argument section of
the brief dealing with the contention that "there was a variance
between the conspiracy charged in the indictment and the
conspiracy proved at trial."
18
Hernandez relies on the principle that once a defendant has
been convicted of, or has pleaded guilty to, an offense, the
privilege ceases to apply as to that offense and as to any other
charges in an indictment that the government promises to dismiss as
part of the plea agreement. See, e.g., United States v. Pardo, 636
F.2d 535, 543 (D.C. Cir. 1980). However, Chavez had not been
sentenced at the time of Hernandez's trial. As other courts of
appeals have held, impending sentencing may furnish grounds for a
legitimate fear of incurring additional criminal liability from
testifying, in which case the privilege should remain in effect.
See United States v. Lugg, 892 F.2d 101, 102 (D.C. Cir. 1989);
United States v. Tindle, 808 F.2d 319, 325 (4th Cir. 1986); Bank
One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1075-76 (6th Cir.
1990); United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th
Cir.), cert. denied sub nom. Fierro-Soza v. United States, 99 S. Ct.
618 (1978). From the record before us, we cannot preclude that
reasonable possibility, and we therefore find no abuse of
discretion in the district court's deferral to Chavez's invocation
of the Fifth Amendment.
V. Increase in Offense Level
Hernandez's final contention is that the district court erred
in increasing his offense level by three levels based on the PSR's
finding that he was a supervisor within the meaning of U.S.S.G. §
3B1.1(b). Hernandez has not provided this Court with a transcript
of the sentencing hearing, or offered any justification for not
doing so. We therefore consider this contention waived. See
United States v. Hinojosa, No. 91-2260, slip op. at 3933-34 (5th
19
Cir. Apr. 3, 1992).
Conclusion
Because we find all of Hernandez's contentions unavailing to
establish reversible error, the judgment and sentence of the
district court are
AFFIRMED.
20