United States v. Jimenez ( 2001 )

Revised July 10, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50323
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD JIMENEZ, also known as Big Eddie;
PAUL SANTIVANEZ,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
June 29, 2001
Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON, District Judge.*
KEITH P. ELLISON, District Judge:
Appellants Edward Jimenez and Paul Santivanez were convicted of arson causing
*
United States District Judge for the Southern District of Texas, sitting by designation.
death, firearms violations, and conspiracy. They appeal their convictions and life
sentences. Both appellants argue that, as applied to them, the federal arson statute is
unconstitutional. They also challenge several of the trial court’s evidentiary rulings, its jury
instructions, and its refusal to dismiss the indictment for allegedly prejudicial pre-indictment
delay. Finally, Jimenez challenges his prosecution as violating a prior grant of immunity,
and the district court’s refusal to depart downward based on the fact that Jimenez was a
minor at the time of the offenses. For the reasons stated below, we affirm.
I
The testimony at trial established that on the evening of September 7, 1993, Edward
“Big Eddie” Jimenez, Paul Santivanez, Brian Mahan, Heriberto “Little Eddie” Hernandez,
and Richard Cortez gathered in Cortez’s garage. With the exception of Little Eddie, all
were members of the Klan street gang led by Cortez. Jimenez and Santivanez discussed
retaliating against Jeremy Cruz, a member of the rival Klik street gang, for Cruz’s alleged
involvement in a recent drive-by shooting.1
Santivanez told the others that he knew where Cruz lived, and that Cruz drove a
yellow Camaro. Jimenez added that he knew how to make Molotov cocktails, and had
recently firebombed the house of Klik member Jason Hernandez.2 Using supplies
purchased by Santivanez, Jimenez made two Molotov cocktails using empty malt liquor
1
During the previous month, police had responded to a drive-by shooting from a
Camaro at Jimenez’s residence.
2
In August 1993, Jimenez threw a Molotov cocktail into the residence of Jason
Hernandez. Jimenez was convicted in state court, in August 1995, of the Hernandez
firebombing.
2
bottles, flammable liquid, detergent, and cloth knotted into wicks.
Early the next morning, Santivanez drove the others to Cruz’s house at 2414
Townbreeze, in San Antonio. The yellow Camaro and a pickup truck belonging to the Cruz
family were located out front. Mahan and Little Eddie remained in the car, but the others
walked toward the house. Jimenez and Santivanez each carried a Molotov cocktail and
a cigarette lighter, while Cortez carried a gun. Cortez fired several shots into the house.
Jimenez threw his Molotov cocktail into the master bedroom, where it exploded and started
a fire. Santivanez also threw his Molotov cocktail into the master bedroom. Although the
wick fell out and burned in the front yard, the remainder of the device added fuel to the
bedroom fire. Mahan, now behind the steering wheel, waited for Jimenez, Santivanez, and
Cortez to return, and then quickly drove off.
Richard Cruz, Jeremy’s father, was set on fire by the Molotov cocktails. His wife
Pauline put out the flames on Richard. Richard then rescued his twelve-year-old daughter
Karen, and both fled outside. Richard sat in a wading pool, while Karen tried to ease her
father’s burns by splashing him with water. Although Jeremy, Karen, and Pauline were not
injured, Richard died a week later as a result of his burns.
From 1981 until the time of the fire, Richard ran the family business, A-1 Plastering,
from a one-room office adjacent to the garage. This office was the company’s business
address. Business records and smaller supplies were located in the office. Other
supplies, like cement, were stored in the garage. In the first nine months of 1993, A-1
Plastering employed six full-time workers and generated gross receipts of $170,000. The
business used two pickup trucks and one van, each manufactured in Missouri. Further,
3
A-1 Plastering’s regularly used supplies and equipment were all manufactured outside of
Texas.
No one was arrested immediately for the firebombing of the Cruz residence. During
an interview with San Antonio police officers in November 1993, Jimenez implicated
himself in the arson of the Hernandez home, but denied involvement in the Cruz
firebombing. In 1994, agents of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”)
asked to speak to Jimenez, who was then represented by Mr. Richard Langlois. Langlois
and the United States Attorney’s office reached an agreement by which Jimenez would
debrief with the government. According to a transcript of the September 1994 interview,
Jimenez again denied involvement in the Cruz arson and reiterated his statements that
others were responsible. Following the interview, Jimenez took and failed a polygraph
examination.
Richard Cortez died in January 1995. Through March 1995, when a new case
agent took charge of the investigation, the government was still unable to make a case
against any of the defendants. Jimenez was convicted on August 7, 1995 on the state
charges resulting from the Hernandez firebombing. In late 1995 and 1996, agents
interviewed Mahan and Little Eddie, who told the story of how Jimenez, Santivanez, and
Cortez approached the home, how the first two threw Molotov cocktails, and how Cortez
shot into the home. The government convened a federal grand jury, which heard
testimony in 1997. After receiving confirmation in early 1998 that the Department of
Justice would not authorize the death penalty in this case, the government indicted
Jimenez and Santivanez in August 1998.
4
In a superseding indictment dated May 12, 1999, the government added the death-
causing element under 18 U.S.C. § 844(i). Before this grand jury, however, ATF Agent
Gena Alvarez inadvertently made a brief reference to facts disclosed in Jimenez’s 1994
debriefing. In January 2000, shortly before trial, the government dismissed the
superseding indictment. A grand jury, which did not hear the reference to Jimenez’s
debriefing, returned a second superseding indictment against both Jimenez and
Santivanez.
Shortly before trial, the government disclosed to the defendants information
concerning the mental health history of Little Eddie, one of its chief witnesses. The district
court granted the government’s in limine motion preventing defense counsel from referring
to Little Eddie’s mental state in opening arguments, and from cross-examining him on his
mental health without first receiving permission from the bench. Defense counsel cross-
examined Mahan and Little Eddie. They were also permitted to recall Little Eddie during
their cases-in-chief, but chose not to call him again.
The jury convicted both defendants on all counts: (1) arson causing death, in
violation of 18 U.S.C. § 844(i); (2) use of a destructive device during an arson, in violation
of 18 U.S.C. § 924(c); (3) possession of an unregistered destructive device, in violation of
26 U.S.C. § 5861(d); and (4) conspiracy to commit the other offenses, in violation of 18
U.S.C. § 371. Jimenez and Santivanez were sentenced to life imprisonment, plus a
mandatory sentence of thirty years, to run consecutively.
II
We review de novo the constitutionality of a criminal statute as applied to a
5
defendant. United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000). The Supreme
Court recently held that it is not a federal crime to throw a Molotov cocktail into a private
home, if the home is not “the locus of any commercial undertaking.”3 Although it may seem
inequitable to alter the result simply because the home has a one-room office, the starting
point for the analysis is the statutory requirement that the property destroyed be “used in
... any activity affecting interstate or foreign commerce.” Despite the Supreme Court
decisions in United States v. Lopez,4 and United States v. Morrison,5 the arson of a
building – even a private home – containing an active business will often satisfy the
constitutional requirement that the arson “substantially affect[ ] interstate commerce.”
Lopez, 514 U.S. at 559, 115 S. Ct. at 1630.
A
18 U.S.C. § 844(i) states, in relevant part:
Whoever maliciously damages or destroys, or attempts to damage or
destroy, by means of fire or an explosive, any building, vehicle, or other real
or personal property used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce shall be imprisoned for not less than
5 years and not more than 20 years ... and if death results to any person,
including any public safety officer performing duties as a direct or proximate
result of conduct prohibited by this subsection, shall also be subject to
imprisonment for any term of years, or to the death penalty or to life
imprisonment.
18 U.S.C. § 844(i) (1994 Supp. II) (emphasis added). The government may establish the
requisite federal jurisdictional nexus by proving that the property was either (1) used in,
3
Jones v. United States, 529 U.S. 848, 856, 120 S. Ct. 1904, 1910 (2000).
4
514 U.S. 549, 115 S. Ct. 1624 (1995).
5
529 U.S. 598, 120 S. Ct. 1740 (2000).
6
or (2) used in an activity affecting, interstate commerce.
The Supreme Court’s decisions in Lopez and Morrison illustrate that many federal
prosecutions under the latter category – effect on interstate commerce – may be suspect.
In Lopez, the Court struck down as unconstitutional the Gun-Free School Zones Act of
1990, 18 U.S.C. § 922(q) (1994). The Court identified three broad categories of activity
that Congress may regulate pursuant to its Commerce Clause powers: (1) the channels
of interstate commerce, (2) instrumentalities of interstate commerce and things and
persons in interstate commerce, and (3) activities having a substantial relation to interstate
commerce. Lopez, 514 U.S. at 558-59, 115 S. Ct. at 1629-30. Regarding this third
category, the Court held that, to be within Congress’ Commerce Clause powers, “the
regulated activity [must] ‘substantially affect[ ]’ interstate commerce.” Id. at 559, 115 S. Ct.
at 1630. Rejecting the argument that § 922(q) regulated commercial activity, Lopez stated
that the statute could not be sustained by considering the activity’s aggregate effect on
interstate commerce. Id. at 561, 115 S. Ct. at 1631.
Five years later, in Morrison, the Supreme Court struck down a portion of the
Violence Against Women Act, 42 U.S.C. § 13981 (1994). Revisiting Lopez’s third category
of Commerce Clause regulation – activities substantially affecting interstate commerce –
the Morrison Court identified four factors informing the constitutional analysis: (1) whether
the statute regulates commercial activity, (2) whether the statute contains an express
jurisdictional element, (3) whether the statute or its legislative history contains express
congressional findings regarding the activity’s effect on interstate commerce, and (4)
whether the link between the activity and a substantial effect on interstate commerce is
7
attenuated. 529 U.S. at 609-13, 120 S. Ct. at 1749-51 (citations and internal quotation
marks omitted). Rejecting the legislative findings that gender-motivated violence
substantially affects interstate commerce, the Court stated that Congress may not regulate
“noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on
interstate commerce.” Id. at 617, 120 S. Ct. at 1754.
It is undisputed that the instant case turns on whether the property was used in an
activity affecting interstate commerce. The district court’s jury instructions refer only to
“affecting interstate commerce” as the basis for federal jurisdiction. Cf. United States v.
Johnson, 246 F.3d 749, 750 n.2 (5th Cir. 2001) (per curiam) (stating with respect to another
§ 844(i) case that “[t]he government did not contend that the building was used in
interstate or foreign commerce”) (internal quotation marks omitted). Following the
Supreme Court’s analysis in Lopez and Morrison, we first consider whether other instances
of arson may be aggregated in determining the effect of the arson of the Cruz home on
interstate commerce. Second, if aggregation is not permissible, we then consider the
effect on interstate commerce of a one-room home office.
B
In Russell v. United States, 471 U.S. 858, 105 S. Ct. 2455 (1985), a unanimous
Supreme Court held that 18 U.S.C. § 844(i) is constitutional as applied to the arson of a
two-unit apartment building. Reviewing the statute’s legislative history, the Court
summarized Congress’s intention as “protect[ing] all business property, as well as some
additional property that might not fit that description, but perhaps not every private home.”
Id. at 862, 105 S. Ct. at 2457. The Court stated that real estate rental “unquestionably”
8
affects commerce, because the local rental is part of “a much broader commercial market
in rental properties.” Id. Relying on Perez v. United States,6 the Court held that because
Congress has the power to regulate the class of activities in the rental market, it may
regulate individual activity within that class. 471 U.S. at 862, 105 S. Ct. at 2457.
In this circuit, we attempted to harmonize Russell with Lopez by cabining in some
of the possible excesses of federal prosecution under § 844(i). For example, in United
States v. Corona, 108 F.3d 565 (5th Cir. 1997), we predicted that the statute would not
constitutionally apply to the arson of a private home simply because the home was
connected to interstate natural gas lines. Id. at 570. In United States v. Johnson, 194
F.3d 657 (5th Cir. 1999) (“Johnson I”), we vacated the guilty plea of a defendant who set
fire to and destroyed a Methodist church. The panel held that the plea’s factual basis
failed to establish that the church was used in an activity affecting interstate commerce.
Id. at 662. Judges Garwood and Barksdale disagreed with the majority opinion, insofar as
the district court on remand could consider the aggregate effects of other arsons of
noncommercial buildings in determining whether the church was used in an activity
affecting interstate commerce. Id. at 665 (Garwood, J., specially concurring).
Last year, in Jones v. United States, 529 U.S. 848, 120 S. Ct. 1904 (2000), the
Supreme Court considered the applicability of § 844(i) to the arson of an owner-occupied
home. In Jones, the government identified three activities of the home purportedly
affecting interstate commerce, and therefore supporting the defendant’s conviction: (1) the
home was used to secure a mortgage from an out-of-state lender; (2) the home was used
6
402 U.S. 146, 91 S. Ct. 1357 (1971).
9
to obtain a casualty insurance policy from an out-of-state firm; (3) the home was connected
to out-of-state sources of natural gas. Id. at 855, 120 S. Ct. at 1910. Relying on its earlier
ruling in Lopez, and invoking the rule of lenity, the Court reversed the conviction and
interpreted § 844(i) as applying “only [to] property currently used in commerce or in an
activity affecting commerce.” Id. at 859, 120 S. Ct. at 1912.
Eight days after issuing Jones, the Supreme Court vacated and remanded Johnson
I,7 and in a recent opinion, the panel held that the government may not use aggregation
to prove that a firebombed building affects interstate commerce. United States v. Johnson,
246 F.3d 749, 752 n.5 (5th Cir. 2001) (per curiam) (“Johnson II”) (holding that to the extent
that it conflicts with Judge Benavides’ opinion, Judge Garwood’s opinion in Johnson I now
controls). Consistent with Johnson II, the government may not prove a noncommercial
building’s effect on interstate commerce by aggregating unrelated instances of arson.
C
What remains open for consideration after Jones and Johnson II is whether a home
office satisfies § 844(i)’s requirement that the destroyed property be “used in an activity
affecting interstate commerce.” Jones held that “[t]he proper inquiry ... ‘is into the function
of the building itself, and then a determination of whether that function affects interstate
commerce.’” 529 U.S. at 854, 120 S. Ct. at 1910 (quoting United States v. Ryan, 9 F.3d
660, 675 (8th Cir. 1993) (Arnold, C.J., dissenting in part)).8 Both the Court’s and the
7
530 U.S. 1201, 120 S. Ct. 2193 (2000).
8
Ryan, which was decided over Chief Judge Arnold’s panel and en banc dissents, see
41 F.3d 361 (8th Cir. 1994), involved the applicability of § 844(i) to the arson of a permanently
closed fitness center. A panel of the Eighth Circuit recently granted § 2255 relief to the
10
statute’s language call for an objective analysis. Accordingly, a jury must determine the
building’s function, not whether the defendant knew of the building’s function.9
The Jones Court suggested that a home office may have a substantial effect on
interstate commerce: “The Government does not allege that the Indiana residence served
as a home office or the locus of any commercial undertaking.” 529 U.S. at 856, 120 S. Ct.
at 1910. In United States v. Shively, 927 F.2d 804 (5th Cir. 1991), we upheld the
constitutionality of federal arson convictions based on the defendants’ destruction of a
company vehicle and a home with an office. There we found it significant that company
checks paid for the residence’s mortgage and utility bills, that $100,000 in business funds
were kept at the residence, and that drivers for the homeowners’ trucking company “would
frequently stay at the house” during layovers. Id. at 808. Although Shively was decided
prior to Jones, its functional analysis and weighing of commercial factors remain
instructive.
In the instant case, the jury heard significant, unrebutted evidence that the Cruz
family’s home office was the primary location for their construction business. As an initial
defendant on the basis of the Supreme Court’s holding in Jones. See United States v. Ryan,
227 F.3d 1058 (8th Cir. 2000).
9
We are not persuaded that a defendant need have any knowledge of a building’s
effect on interstate commerce in order to be convicted under § 844(i). Any suggestion to the
contrary in United States v. Corona, 108 F.3d 565, 571 (5th Cir. 1997) is inconsistent with
Jones, and with this court’s holdings regarding similar federal crimes. See United States v.
Jackson, 978 F.2d 903, 910-11 (5th Cir. 1992) (holding that the federal kidnapping statute, 18
U.S.C. § 1201(a), requires only that a victim be “willfully transported” in interstate commerce,
and “does not require that the defendant move the victim or that the defendant know that the
victim will be moved in interstate commerce”); United States v. Dancy, 861 F.2d 77, 81 (5th Cir.
1988) (holding that 18 U.S.C. § 922(g), prohibiting certain persons from possessing firearms
that have traveled in interstate commerce, does not require that the defendant be aware of the
firearm’s nexus to interstate commerce).
11
matter, because A-1 Plastering’s address for tax purposes was 2414 Townbreeze, the
location of the home, this case is quickly distinguishable from the garden-variety situation
of a lawyer or salesperson who occasionally works from home.10 A-1 Plastering’s gross
receipts in 1993 averaged nearly $20,000 per month, and the company paid over $8,000
per month in wages to its employees. At a more fundamental level, an office building
having the same characteristics as the Cruzes’ home office – where business records and
supplies were stored, where employee paychecks were written and picked up, and where
business vehicles occasionally parked overnight – would easily be classified as
substantially affecting interstate commerce. Federal jurisdiction over the firebombing of
the Cruz home is not undermined simply because the “locus of [the family’s] commercial
undertaking,” Jones, 529 U.S. at 856, 120 S. Ct. at 1910, was a private home.
D
What remains is the equitable argument presented by Jimenez and Santivanez, that
they had no reason to believe that the Cruz home contained an office. In this view, a quiet
street lined with single-family homes becomes a trap for the unwary firebomber. But this
analysis ignores the other side of the equation. Several defendants who burned down
commercial buildings have benefitted by those buildings’ lack of economic viability. In one
case, a defendant who set fire to an abandoned fitness center had his conviction
overturned, because the court held that a completely abandoned building has no
10
The Eleventh Circuit has held that a homeowner’s personal computer failed to have
a substantial effect on interstate commerce, because the computer was used for business
purposes only once per week. See United States v. Denalli, 73 F.3d 329, 330-31 (11th Cir.
1996). Denalli differs in kind from both Shively and the instant case.
12
substantial nexus to interstate commerce. See United States v. Ryan, 227 F.3d 1058,
1063-64 (8th Cir. 2000). In another case, a defendant escaped the application of § 844(i)
because, even though she knew the house was rented to tenants, the house was vacant
and uninhabitable at the time of the arson. See United States v. Gaydos, 108 F.3d 505,
511 (3d Cir. 1997). It would be inconsistent to reward the defendants in Ryan and Gaydos
– who had the good fortune of setting fire to buildings that were not commercially viable
– but not to punish defendants who inadvertently destroy a commercially viable office
located in a private home.
III
Akin to Jimenez’s and Santivanez’s Commerce Clause challenge is their contention
that the district court’s jury instructions failed adequately to inform the jury on the interstate
commerce element. The Federal Rules of Criminal Procedure provide that a party may not
complain of an error or omission in the court’s jury instructions without first objecting to the
instruction, “stating distinctly the matter to which that party objects and the grounds of the
objection.” Fed. R. Crim. P. 30. Long-standing precedent teaches that we will not
ordinarily consider arguments not fully raised below. See Hormel v. Helvering, 312 U.S.
552, 556, 61 S. Ct. 719, 721 (1941). When a defendant fails to object to an instruction,
or if he urges a different ground for the objection on appeal than before the district court,
we review for plain error. United States v. Heath, 970 F.2d 1397, 1407 (5th Cir. 1992).
The district court instructed the jury that “the government need only establish a
minimal connection between the building or property at issue and interstate commerce.”
Jimenez and Santivanez objected to this sentence of the instructions, and in particular to
13
the word “minimal.” Although the defendants had previously moved to dismiss the
indictment on the ground that the Cruz home had an insubstantial effect on interstate
commerce, the basis for their objection to the jury instruction was not that the sentence
misstated the law. Rather, the defendants objected because, in their view, this sentence
commented on the weight of the evidence. The district court therefore had no opportunity
to consider the constitutional effect of the objected-to language. Cf. United States v.
Jennings, 195 F.3d 795, 801 (5th Cir. 1999) (considering, in a Hobbs Act prosecution, the
effect of an instruction requiring “an effect,” rather than a “substantial effect,” on interstate
commerce).11 Accordingly, we review for plain error.
Under the plain error analysis, the court may reverse a criminal conviction only if
(1) there was error, (2) the error was clear and obvious, and (3) the error affected a
substantial right. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993);
Fed. R. Crim. P. 52(b). Further, because review of plain error is permissive, rather than
mandatory, we exercise our discretion to reverse a conviction only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration
in original) (citations and internal quotation marks omitted); United States v. Slaughter, 238
F.3d 580, 584-85 (5th Cir. 2000).
Jimenez’s and Santivanez’s challenge fails on the third element of the Olano test,
because the word “minimal” did not affect a substantial right. A criminal defendant
11
See also Rizzo v. Children’s World Learning Centers, Inc., 213 F.3d 209, 212 & n.1
th
(5 Cir. 2000) (en banc) (holding that a defendant, by requesting a special interrogatory
regarding the defendant’s affirmative defense, did not preserve the issue of whether the trial
court improperly instructed the jury on the defendant’s burden of proof).
14
ordinarily bears the burden of proving that the error “must have affected the outcome of
the district court proceedings.” Olano, 507 U.S. at 734, 113 S. Ct. at 1778. In United
States v. Garcia Abrego, 141 F.3d 142, 166 (5th Cir. 1998), we rejected the contention that
the court’s continuing criminal enterprise (“CCE”) instruction prejudiced a defendant by
suggesting, theoretically, that the defendant could be an organizer of persons who were
not his supervisees. Because the government’s case established that the defendant
supervised a large number of persons, and because the government did not argue that the
jury should convict the defendant based on buyer-seller relationships, we held that no
substantial right was affected by the jury instruction. Id.
Even if a jury instruction entirely omits an element of the offense, we will affirm
unless the defendant proves that the instruction contributed to his conviction. In United
States v. Slaughter, 238 F.3d 580 (5th Cir. 2000), the defendant was convicted on various
narcotics distribution charges. Four counts of the defendant’s indictment alleged the type
and quantity of narcotics involved, but as to three of these counts, the district court’s jury
instructions omitted the quantity. Id. at 583. Noting that the jury had the indictment during
deliberations, the court refused to find that a rational jury could conclude that the quantities
stated in the indictment were incorrect. Id. at 584.
The instant case is governed by Garcia Abrego and Slaughter. The government
introduced substantial evidence that supplies, materials, and vehicles owned by A-1
Plastering traveled in interstate commerce. The defendants, during their closing
arguments, never disputed the company’s interstate effects. Even if the word “minimal”
negated entirely the element of interstate commerce, we will affirm the convictions unless
15
Jimenez and Santivanez can prove that the instruction was prejudicial, and therefore
affected a substantial right. Because the evidence could not permit a rational jury to find
that the Cruzes’ home did not affect interstate commerce, any error below did not affect
a substantial right.12
IV
Jimenez and Santivanez challenge the trial court’s exclusion of proposed testimony
concerning zoning variances and neighborhood characteristics. They also argue that the
court improperly granted the government’s in limine motion concerning Little Eddie’s
mental health records, and unfairly limited their ability to impeach him on his mental health
history. We review the trial court’s evidentiary rulings, including the decision to exclude
relevant evidence pursuant to Federal Rule of Evidence 403, for an abuse of discretion.
United States v. Sprick, 233 F.3d 845, 852 (5th Cir. 2000).
A
Jimenez offered the testimony of Martin Rodriguez, an employee of the City of San
Antonio, to show that, in 1993, the Cruz’s neighborhood was not zoned for businesses,
and that their home had not received a zoning variance. Citing a lack of relevance, the
trial court excluded Rodriguez’s testimony.
No court has ever required that a business be lawfully zoned in order to satisfy
§ 844(i)’s interstate commerce requirement. In United States v. Barton, 647 F.2d 224 (2d
Cir. 1981), the Second Circuit upheld federal arson convictions for defendants who had
12
Because we hold that no substantial right was affected, we express no view on
whether the instructions were erroneous.
16
bombed illegal gambling clubs. See id. at 232 (“the principal commercial activity was the
gambling”). The result in Barton persuades us to find no error here. Because the
interstate commerce element necessitates a functional analysis, Rodriguez’s proposed
testimony regarding zoning was not relevant to whether the Cruz home substantially
affected interstate commerce. Furthermore, the issue of whether an improperly zoned
business falls under the purview of 18 U.S.C. § 844(i) is a legal question for the court, not
a fact issue for the jury. Therefore the proposed zoning testimony, even if relevant, would
be unduly confusing and misleading to the jury under Fed. R. Evid. 403. The district court
did not abuse its discretion by excluding Rodriguez’s testimony.
B
Prior to trial, the government filed a motion in limine, requesting that counsel for
Jimenez and Santivanez not refer in their opening arguments to Little Eddie’s mental
health. Granting this motion, the district court ordered that during opening argument, “[t]he
parties ... not discuss the mental condition of any witness unless they are prepared to
show that the condition existed during the time frame of the events relevant to this case.”
During the course of the trial, the court considered the admissibility of Little Eddie’s mental
health records, and whether Jimenez and Santivanez could impeach Little Eddie about the
facts contained therein.13
Reviewing the mental health records in camera, the court determined that the
records primarily concerned periods of time well before and well after the 1993
13
Pending review of the records, the court prohibited defense counsel from
questioning Little Eddie about his mental health. (Tr. 614, 688).
17
firebombing, and did not cast doubt on Little Eddie’s willingness to tell the truth. (Tr. 718-
19, 734, 902). While sealing the mental health records, the court stated that they would
“be part of the appellate record.” (Tr. 737). The court made further reference to the
records’ admissibility being subject to appellate review. (Tr. 738, 901). Counsel for
Jimenez and Santivanez cross-examined Little Eddie extensively, but regarding the mental
health records, they were permitted to inquire only into issues such as previous drug use
and overdoses. (Tr. 732-34, 737-38).
1
At trial, Jimenez and Santivanez did not make an offer of proof regarding their
proposed impeachment, based on mental health records, of Little Eddie. In the usual
case, we would not consider their claim that the trial court improperly excluded the records
and related testimony. See United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979)
(stating that the court “will not even consider the propriety of the decision to exclude the
evidence at issue, if no offer of proof was made at trial”); Fed. R. Evid. 103(a). Objecting
to an in limine order excluding testimony or evidence does not relieve a party from making
an offer of proof. See United States v. Estes, 994 F.2d 147, 149 (5th Cir. 1993) (holding
that defendant’s failure to offer, at trial, a witness’s prior conviction was not excused, even
though the district court had previously granted the government’s in limine motion to
exclude the conviction).
On the other hand, a party’s offer of proof need not be formal. See Winkle, 587
F.2d at 710. W e have also stated that, in general, “excluded evidence is sufficiently
preserved for review when the trial court has been informed as to what counsel intends to
18
show by the evidence and why it should be admitted, and this court has a record upon
which we may adequately examine the propriety and harmfulness of the ruling.” United
States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994). The latter rule has particular force
when the trial court makes clear that it does not wish to hear further argument on the issue.
See id. at 1406-07 (noting that the district court had twice admonished counsel not to
“spoon feed” the court regarding the defendant’s debriefing with the government).
In the instant case, the district court did not prevent counsel from making an offer
of proof, but explained after its in camera review that Little Eddie’s mental health records
were not admissible. Upon sealing the records, the court repeatedly stated that the
defendants’ objections were preserved for appeal. Based on this record, we conclude that
the district court was adequately informed of the reasons for which counsel wished to
impeach Little Eddie concerning his mental health.
2
In reviewing the sealed exhibits, we are mindful that a defendant has “the right to
attempt to challenge [a witness’s] credibility with competent or relevant evidence of any
mental defect or treatment at a time probatively related to the time period about which he
was attempting to testify.” United States v. Partin, 493 F.2d 750, 763 (5th Cir. 1974). To
be relevant, the mental health records must evince an “impairment” of the witness’s “ability
to comprehend, know, and correctly relate the truth.” Id. at 762.14
14
Partin correctly states that offering the records for impeachment purposes, rather
than as “evidence in chief,” weighs in favor of admissibility. 493 F.2d at 764. But whether
offered for substantive or impeachment purposes, the mental health records must be relevant,
and their probative value must not be substantially outweighed by the danger of unfair
prejudice. Fed. R. Evid. 401, 403; cf. United States v. Abel, 469 U.S. 45, 50-51, 105 S. Ct.
19
 No rule outlines with precision the severity and timing that make a witness’s mental
illness relevant for impeachment purposes. But the decisions of this and other circuits
stand for the general principle that a diagnosis of schizophrenia or a psychosis will be
relevant, unless the diagnosis is too remote in time from the events alleged in the
indictment. Compare Partin, 493 F.2d at 764 (witness diagnosed with schizophrenia six
months prior to the defendants’ Hobbs Act violations), Greene v. Wainwright, 634 F.2d
272, 274, 276 (5th Cir. 1981) (witness was allegedly involved in “certain bizarre criminal
actions ... such as shooting out the windows of a bar,” during the “same general time
period as the [defendant’s] marijuana sale”); United States v. Society of Indep. Gasoline
Marketers, 624 F.2d 461, 467 (4th Cir. 1979) (witness hospitalized for schizophrenia, manic
depression, and delusions during the time of defendants’ Sherman Act violations); and
United States v. Lindstrom, 698 F.2d 1154, 1164-67 (11th Cir. 1983) (witness diagnosed
with paranoia and schizophrenia during the time of defendants’ conspiracy) with United
States v. Diecidue, 603 F.2d 535, 551 (5th Cir. 1979) (witness committed twelve years prior
to defendants’ conspiracy, but never again treated for mental illness).
For witnesses whose mental history is less severe, district courts are permitted
greater latitude in excluding records and limiting cross-examination. See United States
v. Sasso, 59 F.3d 341, 347-48 (2d Cir. 1995) (affirming limit on cross-examination of
witness who was depressed and took Prozac and Elovil shortly before the time of the
defendants’ firearms smuggling conspiracy); United States v. Butt, 955 F.2d 77, 83 (1st Cr.
465, 468-69 (1984) (holding that the Federal Rules of Evidence permit the impeachment of a
witness by showing bias).
20
1992) (affirming exclusion of records and expert testimony, and limit on cross-examination
of a witness who once attempted suicide, but was never diagnosed with a mental illness);
United States v. Moore, 923 F.2d 910, 913 (1st Cir. 1991) (affirming limit on cross-
examination of witness who saw a therapist after the death of her child, and ten years prior
to the embezzlement conspiracy). Moreover, none of the cited cases involve adolescent
witnesses, among whom depression and suicidal tendencies may be less indicative of
severe mental incapacity.
In the instant case, the district court reviewed Little Eddie’s mental health records,
then gave the parties time to uncover the following facts. Beginning while he was in sixth
grade, Little Eddie was diagnosed with conduct and hyperactivity disorders. In September
1990, in a confrontation with his mother over going to school, Little Eddie became verbally
abusive, broke a dresser mirror, and threatened to kill himself. He was admitted to the San
Antonio State Hospital for two weeks, during which time he was prescribed with an anti-
depressant medication. In early 1991, Little Eddie repeatedly refused to take his
medication, and twice attempted suicide. He was again admitted in October 1991, but
soon released because his depression was under control, and he showed no further
suicidal tendencies, nor any signs of psychosis. While in criminal detention in 1994, Little
Eddie stated that he almost overdosed on cocaine one or two years before, and though
he was still depressed at the time of his detention,15 he appeared coherent and stable.
Finally, in October 1997, over four years after the firebombing at issue in this case, Little
15
The examination notes state that Little Eddie “fe[lt] bad” after his father passed away
in April 1994.
21
Eddie threatened to jump off a highway overpass. On being admitted to a local mental
health facility, he claimed that he wanted to see his child. Little Eddie was treated for ten
days, then upon exhibiting no further signs of dangerousness, and agreeing to seek
counseling, he was released.
After carefully reviewing the sealed exhibits, we find that there is only a tenuous
argument that Little Eddie suffered from an impairment affecting his ability to comprehend
and tell the truth. He was never diagnosed with a psychosis. Further, although Little
Eddie’s self-destructive behavior arguably overlapped with the 1993 firebombing of the
Cruz home, it is important to remember that he was between fourteen and fifteen years old
at the time of his two known suicide attempts. Finally, the 1997 incident appears entirely
unrelated to his behavior of six and seven years before. Little Eddie was extensively
cross-examined by counsel for Jimenez and Santivanez regarding his drug use, criminal
activity, and allegedly inconsistent statements to police. The district court also permitted
counsel to inquire into issues such as his drug overdose. W e cannot say that these
limitations denied Jimenez and Santivanez their Sixth Amendment right adequately to
confront Little Eddie.16 Therefore we find no abuse of discretion.
V
There is no allegation before us that the prosecutions of Jimenez and Santivanez
16
Although the appellants’ brief recites a number of inconsistencies between the
testimony of government witnesses Little Eddie and Brian Mahan, it ignores the fact that
counsel cross-examined both witnesses at length on these matters. Little Eddie’s credibility is
a quintessential jury issue.
22
failed to satisfy the relevant statutes of limitation.17 For pre-indictment delay to violate the
Due Process clause of the Constitution, a defendant must show both actual and
substantial trial prejudice, and intentional delay by the government for a bad faith purpose.
United States v. Crouch, 84 F.3d 1497, 1500 (5th Cir. 1996) (en banc). Prior to trial,
Jimenez moved to dismiss the indictment against him on grounds of prejudicial pre-
indictment delay.18 Finding that Jimenez failed to show prejudice, the court below refused
to consider the purpose for the delay, and denied the motion to dismiss. We review the
district court’s factual determinations for clear error. Id. at 1523; United States v.
Beszborn, 21 F.3d 62, 66 (5th Cir. 1994).
The firebombing of the Cruz home occurred on September 8, 1993, and the first
indictment against Jimenez was returned on August 5, 1998. On appeal, Jimenez
indicates that two factors establish prejudice in his case. First, he argues that, had the
government indicted him prior to his twenty-first birthday, he would have been prosecuted
as a juvenile. Second, he argues that Richard Cortez, who died in January 1995, would
have provided crucial testimony.
Jimenez’s first ground for finding prejudice concerns the applicability of the Juvenile
Delinquency Act (“JDA”), 18 U.S.C. §§ 5031, et seq. (1994). Jimenez argues that, even
17
There is no statute of limitations on the § 844(i) charge, because Richard Cruz’s
death makes it a capital offense. 18 U.S.C. § 3281. As to the non-capital charges, the August
8, 1998 indictment satisfies the five-year statute of limitations. 18 U.S.C. § 3282.
18
Santivanez failed to file a motion to dismiss prior to trial, thus waiving this issue for
purposes of his appeal. See Fed. R. Crim. P. 12(b)(1).
23
though the JDA does not technically apply to him,19 he would have benefitted from its
provisions had the government indicted him more promptly. On this question, we find
instructive the Second Circuit’s decision in United States v. Hoo, 825 F.2d 667 (2d Cir.
1987). The defendant in Hoo was charged, only two weeks following his twenty-first
birthday, with operating a RICO enterprise, and with seven acts of racketeering, including
conspiracy to commit murder, attempted murder, and murder. Id. at 668. The defendant
moved to dismiss the indictment, and at an evidentiary hearing prior to trial, the
government stated that until the day before the defendant’s twenty-first birthday, it lacked
“the most important evidence against him” – a cooperating witness’s testimony about the
defendant’s participation in a murder. Id. at 669. The court of appeals held that the
defendant failed to show that the government’s delay was the result of an improper
prosecutorial motive. Id. at 671.
The instant case admittedly differs from Hoo because Jimenez was not indicted
immediately after the government’s debriefing of Mahan and Little Eddie. But a critical
factor cuts sharply against Jimenez’s claim of prejudicial delay: until March 8, 1999, the
government had no reason to believe that the JDA might apply. Prior to that date, when
they received notice from Jimenez’s counsel concerning Jimenez’s date of birth,
prosecutors were unaware that he was 17 years old at the time of the firebombing. At the
19
We have not previously considered the applicability of the JDA to defendants who
commit crimes before their eighteenth birthdays, but who are indicted after reaching the age of
twenty-one. Those circuits that have addressed this issue agree that the JDA is inapplicable
under these circumstances. See United States v. Hoo, 825 F.2d 667, 669-70 (2d Cir. 1987);
United States v. Araiza-Valdez, 713 F.2d 430, 432-33 (9th Cir. 1980); United States v.
Delatorre, 157 F.3d 1205, 1209 n.2 (10th Cir. 1998); In re Martin, 788 F.2d 696, 697-98 (11th
Cir. 1986); United States v. Thomas, 114 F.3d 228, 264 (D.C. Cir. 1997).
24
time of the August 1998 indictment, only one document in the government’s files indicated
Jimenez’s correct date of birth of April 7, 1976; numerous other documents, including
those provided by the Texas Department of Corrections, erroneously listed his date of birth
as April 7, 1974 or April 7, 1975.20 According to either of the erroneous dates, Jimenez
would have been an adult at the time of the Cruz firebombing. The government therefore
had no reason at the time to believe it should pursue the arson and firearms charges
against Jimenez under the JDA.
Moreover, even if the government had realized Jimenez’s true date of birth prior to
his twenty-first birthday, April 7, 1997, the JDA expressly requires the government to
transfer Jimenez for prosecution. Section 5032 mandates that “a juvenile who is alleged
to have committed an act after his sixteenth birthday” described in 18 U.S.C. § 844(i), “and
who has previously been found guilty of ... an offense in violation of a State felony statute”
equivalent to § 844(i), “shall be transferred to the appropriate district court of the United
States for criminal prosecution.” 18 U.S.C. § 5032 (emphasis added). Following his
August 7, 1995 state conviction for the Hernandez firebombing, it was a foregone
conclusion that Jimenez be transferred in connection with the Cruz firebombing.
Mahan and Little Eddie, the cooperating witnesses in this case, did not debrief with
the government until after August 7, 1995.21 We therefore agree with the government that
20
The Texas Department of Corrections, which has held Jimenez in custody since
November 1993, erroneously lists his birth date as either April 7, 1974 or April 7, 1975. The
San Antonio Police Department, in several reports regarding Jimenez, erroneously lists his
birth date as April 7, 1975.
21
Mahan and his counsel signed the government’s Rule 11 letter on August 11, 1995.
Little Eddie and his counsel signed the government’s Rule 11 letter on September 10, 1996.
25
there was no indictable case against Jimenez until at least August 11, 1995, and that any
subsequent delay in indicting him cannot therefore be prejudicial.
A fortiori, Jimenez’s second ground for finding prejudice fails. Richard Cortez, who
was a Klan leader and who fired gunshots into the Cruz home, died in January 1995,
months before Mahan and Little Eddie agreed to cooperate with the government.
Therefore even the speculative prejudice to Jimenez,22 cannot be attributed to the
government. The district court did not clearly err in finding that Jim enez’s due process
rights were not prejudiced by the government’s August 5, 1998 indictment.
VI
In Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653 (1972), the Supreme
Court upheld the constitutionality of 18 U.S.C. § 6002, which grants use and derivative-use
immunity to federal witnesses. Although the statute does not grant “absolute immunity
against future prosecution,” id. at 451, 92 S. Ct. at 1660 (quoting Counselman v.
Hitchcock, 142 U.S. 547, 586, 12 S. Ct. 195, 206 (1892)), the Court held that the use- and
derivative-use protection is “coextensive with the [Fifth Amendment] privilege ... and is all
that the Constitution requires.” Id. at 459, 92 S. Ct. at 1664. Federal Rule of Criminal
Procedure 11(e)(6) similarly provides that, with limited exceptions, statements made by a
defendant during plea discussions with the government are inadmissible. Fed. R. Crim.
P. 11(e)(6)(D).
Prior to trial, Jimenez moved to dismiss the indictment, alleging that the government
22
Jimenez fails to suggest, before the district court below, and now before us, how
Cortez would have provided crucial testimony. We note that Cortez’s death allowed Jimenez,
at trial, to shift the blame for the Cruz firebombing.
26
had violated an agreement not to prosecute him. Following a hearing on this matter, the
district court rejected Jimenez’s claim as based solely on the subjective belief of Jimenez’s
then-counsel. The district court further held that the government’s prosecution against
Jimenez was not tainted by Jimenez’s 1994 statement to ATF agent Carla Bell. We review
the district court’s factual determinations for clear error. United States v. Williams, 859
F.2d 327 (5th Cir. 1988) (per curiam).
A
A defendant who claims that he has received transactional immunity asserts, in
essence, the existence of an agreement not to prosecute. As we held in United States v.
Castaneda, 162 F.3d 832 (5th Cir. 1998), “[n]onprosecution agreements ... are contractual
in nature, and are therefore interpreted in accordance with general principles of contract
law.” Id. at 835. Such an agreement may be either express or implied. Applying contract
law, the defendant bears the burden of proving that there was a mutual manifestation of
assent – either verbally, or through conduct – to the agreement’s essential terms. See,
e.g., United States v. McHan, 101 F.3d 1027, 1034 (4th Cir. 1996) (citing Restatement
(Second) of Contracts § 19 (1979)).23 The court must evaluate both subjective and
objective factors in determining whether the defendant has carried his burden. United
States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) (en banc).
The testimony and exhibits at the pretrial hearing established that on July 20, 1994,
23
Jimenez argues that, in order to prosecute him, the government must prove that
Jimenez breached the alleged immunity agreement. This rule only applies, however, if
Jimenez first proves that such an agreement existed. See United States v. Cantu, 185 F.3d
298, 302 (5th Cir. 1999); Castandea, 162 F.3d at 836.
27
the government, through Assistant United States Attorney David M. Shearer, sent
Jimenez’s counsel, Richard E. Langlois, a letter proposing to meet with Jimenez regarding
his involvement in the Cruz firebombing. This letter stated, in part, that the meeting would
be governed by “Rule 11 of the Federal Rules of Criminal Procedure,” and that pursuant
to Rule 11(e), “any statement which Jiminez [sic] makes in this meeting will not be used
against him in a future prosecution ....” Langlois and Jimenez signed this letter, indicating
their agreement with its terms. Jimenez was then interviewed by ATF agent Carla Bell on
September 6, 1994.
Assuming arguendo that Jimenez’s September 1994 debriefing with the government
constituted a plea discussion for purposes of Rule 11,24 we find no evidence supporting
Jimenez’s assertion that the government agreed not to prosecute him. Mr. Langlois’s letter
of August 26, 1994, in which he indicated Jimenez’s willingness to debrief with the
government, does not discuss immunity at all. As Mr. Langlois admitted at the hearing, he
and the government agents never directly discussed transactional immunity for Jimenez;
Langlois believed the distinction between use and transactional immunity to be “an
afterthought.” Based on these facts, we cannot find that the district court clearly erred in
determining that the government offered Jimenez only use immunity.25
B
24
Cf. United States v. Robertson, 582 F.2d 1356, 1365 (5th Cir. 1978) (en banc) (noting
that “not every discussion between an accused and agents for the government is a plea
negotiation”).
25
We find no merit in Jimenez’s argument that, by agreeing to undergo a polygraph
examination, he must have believed that he would not be prosecuted. His subjective belief
cannot, by itself, establish transactional immunity.
28
Secondly, we consider whether Jimenez’s 1994 debriefing contributed, either
directly or indirectly, to the government’s case against him. In a taint hearing (commonly
referred to as a “Kastigar hearing”), the government must demonstrate that it used nothing
from the defendant’s immunized testimony, either directly as evidence, or indirectly as an
investigatory lead. Kastigar, 406 U.S. at 460, 92 S. Ct. at 1665. The government satisfies
this burden by proving by a preponderance of the evidence “that the evidence it proposes
to use is derived from a legitimate source wholly independent of the compelled testimony.”
Id. We review the district court’s factual findings for clear error.26
In reviewing the conduct of a Kastigar hearing, we have rejected the approach of
another circuit that “constitutionalizes elements of the Kastigar process.” United States v.
Cantu, 185 F.3d 298, 304 (5th Cir. 1999).27 Although the government must “give the
defendant a chance to cross-examine relevant witnesses, ... the focus of the ... inquiry
should remain on whether the evidence was tainted, and not on the procedures by which
the court comes to this conclusion.” Id. For example, the government may submit post-
hearing documents supporting a witness’s testimony. Id.
Jimenez claims that because his debriefing conversation was tape-recorded, and
because the government conceded that it has lost the tape,28 the government failed to
26
Cf. Cantu, 185 F.3d at 302 (“The district court did not make any factual findings;
therefore we review Cantu’s claim de novo.”).
27
In United States v. North, 920 F.2d 940 (D.C. Cir. 1990), the District of Columbia
Circuit held that in conducting a Kastigar hearing, the district court may not substitute an in
camera review for a hearing in which the defendant is permitted to cross-examine witnesses.
Id. at 944.
28
The government notified Jimenez in September 1998 that it had lost the tape
recording of the debriefing.
29
carry its burden of showing that the subsequent prosecution was not tainted. At the
pretrial hearing, the government submitted a handwritten transcript of Jimenez’s
debriefing. ATF agent Carla Bell wrote this transcript while listening to the tape at some
time prior to March 1995. The government did not call Bell to testify at the hearing, but
authenticated the transcript through ATF agent Gena Alvarez, who testified that she is
familiar with Bell’s handwriting.
We have not yet determined the extent to which the Federal Rules of Evidence
apply to Kastigar hearings. Nor need we do so in this case. Because the original
recording has been lost or destroyed, the transcript would ordinarily be admissible as
“other evidence of the contents.” Fed. R. Evid. 1004(1). Moreover, the potential hearsay
problem must be balanced against the proper focus of the Kastigar hearing: whether the
government’s evidence was tainted. As the district court noted, Jimenez never
contradicted Alvarez’s testimony that the transcript was accurate. Jimenez in fact admits
that his 1994 interview revealed “all of the same facts, leads, names and events contained”
in his 1993 statement to Texas authorities.29 There was no clear error in the district court’s
finding that Jimenez’s prosecution was untainted by his 1994 debriefing.
VII
A sentencing court’s decision not to depart downward is reviewable only if “the
refusal to depart ‘is premised upon the ... court’s mistaken assumption that the Guidelines
do not permit such a departure.’” United States v. Dadi, 235 F.3d 945, 954 (5th Cir. 2000)
29
Significantly, Jimenez’s 1993 statement to the San Antonio Police Department –
which consists primarily of his denial of wrongdoing in the Cruz firebombing – was made
voluntarily, and unlike his 1994 statement, is not immunized.
30
(quoting United States v. Powers, 168 F.3d 741, 753 (5th Cir. 1999)). Jimenez does not
contend that the district court believed it had no authority to depart on the basis of
Jimenez’s age at the time of the Cruz firebom bing. Therefore we lack jurisdiction to
entertain this argument.
CONCLUSION
For the reasons stated, we AFFIRM the convictions and sentences in this case.
31