United States v. Andrews ( 1994 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________
No. 92-7625
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLAUDE HARRIS ANDREWS,
Defendant-Appellant.
__________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
__________________________________________________
(June 7, 1994)
Before DUHÉ and EMILIO M. GARZA, Circuit Judges, and STAGG,*
District Judge.
EMILIO M. GARZA, Circuit Judge.
Claude Harris Andrews appeals his conviction for possession of
marijuana with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) (1988), and importation of marijuana, in violation of
21 U.S.C. §§ 952, 960. Andrews contends that he is entitled to a
new trial because (a) the district court erroneously admitted
evidence which was seized during an unregulated inventory search of
his car, in violation of the Fourth Amendment; (b) the district
court erroneously admitted into evidence statements which Andrews
made to law enforcement officers without knowingly and
intelligently waiving his rights under Miranda v. Arizona, 384 U.S.
*
District Judge of the Western District of Louisiana, sitting by
designation.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (c) the prosecutor
made improper comments at trial; (d) the district court failed to
instruct the jury not to convict Andrews of importation unless he
knowingly brought marijuana into the United States; (e) Andrews
received ineffective assistance of counsel at trial; and (f) in the
alternative, the cumulative effect of all of the foregoing errors
rendered Andrews' trial fundamentally unfair. Finding no
reversible error, we affirm.
I
Our discussion of the issues raised on appeal requires only a
partial statement of the facts. The United States Drug Enforcement
Administration ("DEA") received a tip that the tugboat Concord was
bound for the port at Pascagoula, Mississippi, carrying a cargo of
either marijuana or cocaine from Panama. When the Concord arrived
at a small, secluded boatyard in Pascagoula, DEA and United States
Customs Service agents began covert surveillance of the boat.
Andrews was waiting at the dock when the Concord arrived, and
he told a Customs agent, who was posing as a uniformed Customs
inspector, that he was the front man for a tug boat operation which
would ferry barges from New Orleans to Puerto Rico. Andrews told
the agent that he was having some repairs done on the Concord at
Pascagoula, including draining and scraping the fuel tanks.
Thereafter, DEA and Customs agents maintained continual
surveillance of Andrews when he was away from the dock and the
Concord. Around 2:00 a.m. on the third day after the Concord
docked at Pascagoula, after following Andrews as he visited several
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local drinking establishments, federal agents noticed that Andrews
was driving erratically, and reported the situation to local
police. Officer Doug Adams of the Moss Point Police Department
("MPPD") arrived shortly and stopped Andrews. After Andrews failed
several field sobriety tests, Adams arrested him for driving under
the influence of alcohol ("DUI").
At the scene of the arrest, Adams conducted a routine
inventory search of Andrews' vehicle, finding among Andrews'
personal effects a red spiral notebook containing two diagrams and
several names.1 Adams also found a radio frequency detector))an
electronic device used to detect radio transmissions.2
At the Moss Point jail, approximately two hours after his
arrest, Andrews was interrogated by agents of the Customs Service
and DEA. Andrews stated that he had leased the Concord from Aldo
Gomez, whom he had met through Pedro Lopez, a Cuban from Miami.
Other statements which Andrews made during the interview were used
against him at trial, or were used by federal agents to obtain
evidence about Andrews, the Concord, and its cargo.
1
One of the diagrams included the names of, or
abbreviations for the names of, the countries Colombia, Peru,
Argentina, Venezuela, and Panama. These names and abbreviations
were connected to each other, and to the names of locations in
Georgia and Florida, by a series of lines and arrows. At trial the
government argued that the diagram depicted a marijuana
distribution and importation network. See infra part II.C.2.
2
Federal agents observed Andrews driving erratically, as
if he was attempting to evade surveillance. Andrews could have
used the radio frequency detector to detect the agents' nearby
radio transmissions while they were following him.
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On the day after Andrews' arrest for DUI, fire fighters for
the Pascagoula Fire Department searched inside the fuel tanks of
the Concord and found a hidden, airtight compartment containing
over four thousand pounds of marijuana, with an estimated street
value of $3,600,000. One of the firefighters testified that a
diagram in Andrews' red spiral notebook depicted the Concord's fuel
tanks and the location of the marijuana in the hidden compartment.
An agent for the DEA interviewed Andrews again, and informed
him that marijuana had been discovered on the Concord. Andrews
then stated that "Aldo Gomez was the key to everything in Panama,"
and that the DEA could have "got" Gomez and "the big people" if
they had waited until Gomez arrived in Pascagoula in a few days.
Andrews was indicted for importing marijuana, in violation of
21 U.S.C. §§ 952, 960, and possessing marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). Before trial,
Andrews moved to suppress the notebook and radio frequency detector
seized from his car, on the grounds that the search of his vehicle
was an unreasonable search in violation of the Fourth Amendment.
Andrews also moved to suppress statements he made to federal
officers following his arrest for DUI, arguing that use of those
statements at trial would violate the Fifth Amendment. The
district court denied both motions to suppress. The jury convicted
Andrews on both counts, and the district court sentenced him to 136
months imprisonment.
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II
A
Andrews contends that the district court erred by admitting
into evidence a notebook which was seized during a warrantless
inventory search of Andrews' car after he was arrested for DUI.
While conducting an inventory of the contents of Andrews' vehicle,
MPPD Patrolman Doug Adams opened a red spiral notebook, and
observed a diagram which he thought might be of evidentiary value
to the DEA.3 Adams turned the notebook over to the DEA. Before
trial Andrews moved to suppress the notebook, and after conducting
an evidentiary hearing, the district court denied the motion to
suppress. Andrews contends that Adams' search of the notebook and
delivery of the notebook to the DEA violated his rights under the
Fourth Amendment, because Adams exercised discretion which was not
adequately constrained by standard MPPD regulations governing
inventory searches.
In reviewing the denial of a motion to suppress which alleges
a violation of the Fourth Amendment, "we must accept the district
court's purely factual findings unless they are clearly erroneous
or influenced by an incorrect view of the law." United States v.
Hahn, 922 F.2d 243, 245 (5th Cir. 1991); see also United States v.
Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert. denied, ___ U.S.
3
Adams' intuition was correct. Fire fighters from the
Pascagoula Fire Department searched the tug boat Concord's fuel
cells and discovered the marijuana storage compartment inside. One
of the fire fighters testified that the diagram in Andrews'
notebook depicted the fuel cells and the hidden storage
compartment.
-5-
___, 113 S. Ct. 388, 121 L. Ed. 2d 296 (1992). However, "[t]he
ultimate determination of reasonableness of the search . . . is a
conclusion of law," which we review de novo. Hahn, 922 F.2d at
245; see also United States v. Capote-Capote, 946 F.2d 1100, 1102
(5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 2278, 119
L. Ed. 2d 204 (1992). We will not find a district court's factual
determination to be clearly erroneous unless we are left with the
definite and firm conviction that a mistake has been committed,
United States v. Mitchell, 964 F.2d 454, 457-58 (5th Cir. 1992),
and we view the evidence in the light most favorable to the party
that prevailed below. See Ramirez, 963 F.2d at 705; Capote-Capote,
946 F.2d at 1102.
"The fourth amendment proscribes . . . unreasonable searches
and seizures. To be reasonable a search must normally be conducted
pursuant to a warrant, but courts have long recognized an exception
to the warrant requirement for so-called ``inventory searches' of
automobiles." United States v. Prescott, 599 F.2d 103, 105 (5th
Cir. 1979) (citations omitted); see South Dakota v. Opperman, 428
U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). "When a car is
impounded, the police generally inventory its contents to protect
the owner's property while it is in police custody, to protect the
police against claims of lost or stolen property, and to protect
the police and the public from potential danger." United States v.
Gallo, 927 F.2d 815, 819 (5th Cir. 1991) (citing Opperman, 428 U.S.
at 369, 96 S. Ct. at 3097). Inventory searches are excepted from
the warrant requirement because they serve these "caretaking"
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purposes, and because they are not designed to uncover evidence of
criminal activity. See Opperman, 428 U.S. at 370 & n.5, 96 S. Ct.
at 3097 & n.5 ("In view of the noncriminal context of inventory
searches . . . courts have held))and quite correctly))that search
warrants are not required. . . . With respect to noninvestigative
police inventories of automobiles . . . the policies underlying the
warrant requirement . . . are inapplicable.").
Cases dealing with inventory searches have required that such
searches be conducted according to standard regulations and
procedures, consistent with the proper purpose of a non-
investigative inventory search. In Opperman, the seminal case on
the subject, the Supreme Court stated that "inventories pursuant to
standard police procedures are reasonable," and noted that standard
procedures are "a factor tending to ensure that the intrusion
[represented by an inventory search] would be limited in scope to
the extent necessary to carry out the caretaking function." Id. at
372, 375; 96 S. Ct. at 3098-3100.
In Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L.
Ed. 2d 739 (1987), after the defendant was stopped for driving
under the influence of alcohol, an inventory of the contents of the
defendant's vehicle revealed cocaine in a closed backpack. See id.
at 368-69, 107 S. Ct. at 739. The Court held that the search was
not unreasonable, stating that "reasonable police regulations
relating to inventory procedures administered in good faith satisfy
the Fourth Amendment." Id. at 374, 107 S. Ct. at 742. The Court
"emphasize[d] that . . . the Police Department's procedures
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mandated the opening of closed containers and the listing of their
contents." Id. at 374 n.6; 107 S. Ct. at 742 n.6. The defendant
argued, nonetheless, that the inventory search was unconstitutional
because departmental regulations gave the police officers
discretion to decide whether to impound the defendant's vehicle.
See id. at 375, 107 S. Ct. at 743. The Court rejected that
argument because "[n]othing in Opperman or [Illinois v. Lafayette,
462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983)] prohibits
the exercise of police discretion so long as that discretion is
exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity."
Id.
Most recently, in Florida v. Wells, 495 U.S. 1, 110 S. Ct.
1632, 109 L. Ed. 2d 1 (1990), the Supreme Court held that Florida
highway patrol officers violated the Fourth Amendment when, in the
course of an inventory search of the defendant's vehicle, they
opened a locked suitcase and discovered a large quantity of
marijuana. Id. at ___, 110 S. Ct. at 1634-35. "[T]he record
contained no evidence of any Highway Patrol policy on the opening
of closed containers found during inventory searches," and the
Court held that the inventory search "was not sufficiently
regulated to satisfy the Fourth Amendment." Id. at ___, 110 S. Ct.
at 1634-35. The Court explained:
Our view that standardized criteria must regulate the
opening of containers found during inventory searches is
based on the principle that an inventory search must not
be a ruse for a general rummaging in order to discover
incriminating evidence. The policy or practice governing
inventory seaches should be designed to produce an
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inventory. The individual police officer must not be
allowed so much latitude that inventory searches are
turned into "a purposeful and general means of
discovering evidence of crime."
Id. at ___, 110 S. Ct. at 1635 (citations omitted).
Based on Patrolman Adams' testimony at the suppression
hearing, the district court found that Adams had searched the
notebook according to "normal procedure . . . in Moss Point" and
according to "a standardized routine." That finding was not
clearly erroneous. Adams testified at the suppression hearing as
follows:
Q [By the prosecutor] What was your purpose of doing
the inventory search; why did you do it?
A Policy of Moss Point Police Department, when you
arrest someone out of their vehicle, you tow it and do an
inventory search of their personal belongings and items
left in the vehicle for the protection of the city.
Q All right. Is that standard operating procedures?
A Yes, ma'am.
Q Is it done in every case?
A Yes, ma'am.
Q And is it the policy, whether written or unwritten,
of the police department to do that in every case?
A Yes, ma'am.
Q And obviously that includes traffic stops and DUIs?
A Yes, ma'am.
Q All right. And you said it was to protect the City
of Moss Point or the police department, what do you mean
by that?
A Well, so the person that's arrested doesn't come
back and say, well, I had a five thousand dollar stereo,
or five hundred dollars and now it's missing.
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Record on Appeal, vol. 2, at 65-66. Adams testified again at
trial, regarding the MPPD's inventory policy:
Q [By defense counsel] Do you have an inventory
policy established at Moss Point Police Department?
A Yes, sir. Everybody that's arrested, that's driving
a vehicle, you tow their vehicle, you do an inventory.
Q Is that a written policy or it's in written form?
A I can't say that I've seen a written policy but
that's what I was instructed by my captain the day I went
to work there.
Q So it doesn't have any ritual as far as how it's
conducted. There's nothing written down, step by step
procedure?
A No, sir, you just fill in the form.
Id. vol. 3, at 214. Adams' testimony, which was not contradicted,
reveals that the Moss Point Police Department requires its officers
to conduct inventory searches, including the completion of
inventory forms, for the purpose of protecting the city from claims
of lost property. The district court's finding is not clearly
erroneous.
Andrews contends, however, that a Fourth Amendment violation
occurred because the "page-by-page search of [his] notebook was not
mandated or allowed by any policy of the Moss Point Police
Department."4 We disagree, because it appears that MPPD's policy
did allow Adams to open Andrews' notebook, in order to determine
whether it contained personal property which should have been
included on an MPPD inventory form. Opening a notebook, to
4
Andrews does not contend that Adams' inventory search was merely a
pretense for a search for evidence of criminal activity.
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determine whether valuables might be found between its pages, is
consistent with the MPPD policy requiring an inventory search to
protect the city from claims of lost property. Cash, credit cards,
negotiable instruments, and any number of other items could be
hidden between the pages of a notebook, and could give rise to a
claim against the city if lost.5
Furthermore, MPPD's official procedures sufficiently regulate
the discretion of its officers to prevent them from turning
inventory searches into "``a purposeful and general means of
discovering evidence of crime.'" Wells, 495 U.S. at ___, 110 S.
Ct. at 1635. Adams testified that MPPD's policy requires officers
to conduct an inventory in order to protect the city from claims
for lost property. This policy does not allow MPPD officers
discretion to search a notebook in order to uncover evidence of
criminal wrongdoing. An officer who engages in "a general
rummaging in order to discover incriminating evidence," id. at ___,
110 S. Ct. at 1635, exceeds his authority under the MPPD inventory
search policy.
5
See Record on Appeal, vol. 2, at 70 (Adams' testimony at
suppression hearing) ("Q [By the prosecutor] Would you scan
something like a notebook that had individual pages in it, in case
there might be something valuable stuck between the pages? A Yes,
ma'am."); United States v. Khoury, 901 F.2d 948, 959 (11th Cir.)
("[The agent's] initial inspection of the notebook was necessary
and proper to ensure that there was nothing of value hidden between
the pages of the notebook."), modified on other grounds, 910 F.2d
713 (11th Cir. 1990); United States v. Pace, 898 F.2d 1218, 1243
(7th Cir.) (where police "leafed through the pages of . . . record
books . . . to determine whether any items, such as credit cards,
might be stuck between the pages"), cert. denied, 497 U.S. 1030,
110 S. Ct. 3286, 111 L. Ed. 2d 795 (1990) and 498 U.S. 878, 111 S.
Ct. 210, 112 L. Ed. 2d 170 (1990).
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In Wells the majority observed that "it would be . . .
permissible . . . to allow the opening of closed containers whose
contents officers determine they are unable to ascertain from
examining the containers' exteriors. The allowance of the exercise
of judgment based on concerns related to the purposes of an
inventory search does not violate the Fourth Amendment." Id. at
___, 110 S. Ct. at 1635. From Adams' testimony, it appears that
the policy described by the Supreme Court in Wells is, for all
intents and purposes, the policy of the MPPD. MPPD officers are
instructed (1) to conduct an inventory of an arrestee's vehicle,
(2) to complete an inventory form, and (3) that the purpose of the
inventory is to protect the city from claims of lost or stolen
property. An officer following these instructions must decide
whether it is necessary to open a notebook in order to fulfill the
function of an inventory search, but these discretionary decisions
regarding the scope of the search will be made "based on concerns
related to the purposes of an inventory search," unless the
searching officer oversteps the bounds of her authority under the
MPPD policy.
In Wells, the Court pointed out that there was "no evidence of
any Highway Patrol policy on the opening of closed containers found
during inventory searches." Id. at ___, 110 S. Ct. at 1635. In
Bertine the Court "emphasize[d] that . . . the Police Department's
procedures mandated the opening of closed containers and the
listing of their contents." Id., 479 U.S. at 374 n.6; 107 S. Ct.
at 742 n.6. However, neither of those decisions requires a law
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enforcement agency's inventory policy to address specifically the
steps that an officer should take upon encountering a closed
container. Neither do we understand those cases to require the
Moss Point Police Department to promulgate policies which
specifically mention notebooks.6 The requirement to be distilled
from the line of cases culminating in Wells is that inventory
policies must be adopted which sufficiently limit the discretion of
law enforcement officers to prevent inventory searches from
becoming evidentiary searches. See United States v. Judge, 864
F.2d 1144, 1145 (5th Cir. 1989) (stating that Bertine "does not
condemn all forms of police discretion, but only ``evidentiary'
discretion which is exercised on the basis of suspicion of criminal
activity"), cert. denied, 495 U.S. 918, 110 S. Ct. 1946, 109 L. Ed.
2d 309 (1990). Because that requirement is met by the MPPD
inventory search policy, Andrews has not shown that Adams violated
the Fourth Amendment by searching Andrews' notebook. See United
States v. Walker, 931 F.2d 1066, 1068-69 (5th Cir. 1991) (finding
no Fourth Amendment violation where "police department had an
established but unwritten inventory policy," the purpose of which
"was to protect the property of the owner and to reduce the
potential liability of the police department"); Gallo, 927 F.2d at
819 (holding that inventory search could not be condemned insofar
6
See United States v. Judge, 864 F.2d 1144, 1145 (5th Cir.
1989) (observing that "no manual can reasonably be expected to
spell out in detail the correct action in light of the almost
infinite array of objects an agent may encounter"), cert. denied,
495 U.S. 918, 110 S. Ct. 1946, 109 L. Ed. 2d 309 (1990).
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as department policy permitted opening box for the standard
purposes of inventory searches).
Andrews also argues, however, that no standardized policy
permitted Adams to turn the notebook over to the DEA and the United
States Customs Service. Andrews contends that when Adams turned
the notebook over to federal officials, "[w]hat began as an
inventory search . . . became an excuse for ``investigatory
rummaging' on behalf of Customs and DEA." Andrews' argument is
without merit. "Once property has been seized with proper
justification and is in plain view of governmental officials, the
owner no longer has a reasonable expectation of privacy with
respect to that property, and it may be seized without a warrant."
United States v. Thompson, 837 F.2d 673, 675 (5th Cir.) (footnotes
omitted), cert. denied, 488 U.S. 832, 109 S. Ct. 89, 102 L. Ed. 2d
65 (1988). When Adams turned the notebook over to federal
officials and they reviewed it, it had already been seized with
proper justification, pursuant to a valid inventory search.
United States v. Khoury, 901 F.2d 948 (11th Cir. 1990), upon
which Andrews relies, is distinguishable. In Khoury a DEA agent
examined the defendant's notebook in the course of an inventory
search, but did not discover that the notebook had evidentiary
value. Id. at 959. The purposes of the inventory search being
fulfilled, the inventory exception to the warrant requirement was
no longer available; but the agent examined the notebook again,
this time determining that it had evidentiary value. Id. The
Eleventh Circuit held that the agent's second look at the notebook,
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without a warrant, violated the Fourth Amendment. Id. In the
course of his inventory search of Andrews' car, Adams determined
that the diagram and various names in the notebook had evidentiary
value pertinent to the federal agents' investigation. Khoury is
distinguishable, therefore, because Adams was aware of the
evidentiary value of the notebook before a second look was taken by
federal agents. See Thompson, 837 F.2d at 675 (noting that no
exception to the warrant requirement is available where a "second
inspection [of evidence in government custody is] undertaken to
look for something that had not been discovered at the time of the
inventory" (distinguishing Brett v. United States, 412 F.2d 401,
405 (5th Cir. 1969)). Andrews has not demonstrated that his rights
under the Fourth Amendment were violated, or that the district
court erred by denying his motion to suppress.
B
Andrews next contends that the district court erred by denying
his motion to suppress statements which he made to law enforcement
officers after being arrested for driving under the influence of
alcohol. Andrews contends that he did not knowingly and
intelligently waive his rights under Miranda v. Arizona, because he
was too drunk to understand those rights and the consequences of
relinquishing them.
1
Under Miranda, statements made by a defendant during custodial
interrogation may not be used against him at trial unless
procedural safeguards are employed to protect the defendant's Fifth
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Amendment privilege against self-incrimination. See id., 384 U.S.
at 478-79, 86 S. Ct. at 1630. This requirement is most commonly
satisfied by giving the defendant the customary Miranda warnings:
that he has the right to remain silent, that anything he says can
be used against him in a court of law, that he has the right to the
presence of an attorney, and that an attorney will be provided for
him if he cannot afford to hire one. See id., 384 U.S. at 479, 86
S. Ct. at 1630. "After such warnings have been given, and such
opportunity afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer questions or
make a statement." Id.
The defendant "``may waive effectuation' of the rights conveyed
in the warnings ``provided the waiver is made voluntarily, knowingly
and intelligently.'" Moran v. Burbine, 475 U.S. 412, 421, 106 S.
Ct. 1135, 1140-41, 89 L. Ed. 2d 410 (1986) (quoting Miranda, 384
U.S. at 444, 475, 86 S. Ct. at 1612, 1628). The inquiry whether a
valid waiver has occurred "has two distinct dimensions. First, the
relinquishment of the right must have been voluntary in the sense
that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have
been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon
it." Id. at 421, 106 S. Ct. at 1141. When the prosecution offers
statements made by a defendant during custodial interrogation, "a
heavy burden rests on the government to demonstrate that the
defendant knowingly and intelligently waived his privilege against
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self-incrimination and his right to retained or appointed counsel."
Miranda, 384 U.S. at 475, 86 S. Ct. at 1628.
2
Initially, Andrews contends that the district court "erred in
deciding only the voluntariness of [his] Miranda waiver, without
determining whether [it] was knowing and intelligent." Andrews
argues that the district court should have made an express finding
as to the knowing and intelligent nature of his Miranda waiver.7
Plainly a defendant's motion to suppress should not be denied
on the basis of a Miranda waiver, absent a finding by the district
court that the waiver was knowing and intelligent.8 However, such
a finding may be inferred by an appellate court, given adequate
support in the record. Several other circuits have inferred that
the district court made factual findings reflecting a valid waiver,
even though such findings were not expressly stated in the record.
See United States v. Whitworth, 856 F.2d 1268, 1278 (9th Cir. 1988)
(holding that waiver of Miranda rights was valid where "``finding
. . . that [the defendant] initiated the conversation" was
"``implicit in the district judge's denial of the suppression
7
See Brief for Andrews at 22-23 ("The ruling [denying
Andrews' motion to suppress] holds only that the statements were
voluntarily given; there is no ruling as to whether Andrews'
Miranda waiver occurred ``knowingly' or ``intelligently.' . . . In
this, the trial court erred."); Reply Brief for Andrews at 16
(referring to "deficiency in the district court's findings").
8
See Edwards v. Arizona, 451 U.S. 477, 483-84, 101 S. Ct.
1880, 1884, 68 L. Ed. 2d 378 (1981) (holding that lower courts
"misunderstood the requirement for finding a valid waiver of the
right to counsel" where "neither the trial court nor the Arizona
Supreme Court undertook to focus on whether Edwards understood his
right to counsel and intelligently and knowingly relinquished it").
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motion'"), cert. denied, 489 U.S. 1084, 109 S. Ct. 1541, 103 L. Ed.
2d 846 (1989); United States v. Silva, 715 F.2d 43, 49 (2d Cir.
1983) ("[S]ince it is undisputed that the issue of waiver was
presented to the court below in both parties' memoranda of law in
connection with the suppression motion, we conclude that implicit
in the district court's decision to deny the motion to suppress is
the implied finding that Silva made a voluntary waiver of her right
to remain silent."); United States v. Chapman, 448 F.2d 1381, 1387
(3d Cir. 1971) (where a review of the record, including the
arguments of counsel, "ma[de] it clear . . . that the judge was
cognizant of the fact that he was ruling on the Miranda
requirements, and that he applied the correct standards"), cert.
denied, 405 U.S. 929, 92 S. Ct. 982, 30 L. Ed. 2d 803 (1972).
The Seventh and Eighth Circuits require that the findings of
fact predicate to a valid Miranda waiver be made on the record
"with unmistakable clarity." See United States v. Gardner, 516
F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861, 96 S. Ct. 118, 46
L. Ed. 2d 89 (1975); Evans v. United States, 375 F.2d 355, 360 (8th
Cir. 1967), rev'd on other grounds sub nom. Bruton v. United
States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).9
However, in applying that standard those courts have inferred the
9
See also Sims v. Georgia, 385 U.S. 538, 544, 87 S. Ct.
639, 643, ___ L. Ed. 2d ___ (1967) ("Although the judge need not
make formal findings of fact or write an opinion, his conclusion
that the confession is voluntary must appear from the record with
unmistakable clarity."); United States v. Gonzalez, 548 F.2d 1185,
1189 (5th Cir. 1977) (same) (citing Sims), cited in United States
v. Hernandez, 574 F.2d 1362, 1371 n.19 (5th Cir. 1978); United
States v. Goss, 484 F.2d 434, 436-37 (6th Cir. 1973) (citing Sims).
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predicate fact findings from district court rulings which were less
than explicit. In United States v. Danley, 564 F.2d 813 (8th Cir.
1977), the district court found "with unmistakable clarity" that
the defendant had made a knowing and intelligent waiver, by stating
that the defendant "knew what was going on" and "handled the
situation fairly carefully." See id. at 815. In United States v.
Shabazz, 446 F.2d 77 (8th Cir. 1971), cert. denied, 404 U.S. 1022,
92 S. Ct. 696, 30 L. Ed. 2d 671 (1972), the district court
expressly credited a police officer's testimony "that he did
properly advise [the defendant] of his right to remain silent [and]
his right to counsel, and [the defendant] responded that he knew
his rights." Id. at 79. The Eighth Circuit found that the
district court had made "a legal finding of ``unmistakable clarity'"
on the facts predicate to a valid Miranda waiver. See id. (quoting
Evans). In Gardner the Seventh Circuit held that the district
court's findings reflected the facts with unmistakable clarity
where the district court simply stated, "The motion to suppress is
overruled." See Gardner, 516 F.2d at 340. The court explained:
"[W]e are not limited to looking only at the district court's one
sentence conclusion, and . . . we think the record clearly
discloses that the court was aware of the Miranda requirement [of
a knowing waiver] and that the court's ruling was the result of its
application." Id. The Seventh Circuit relied on the fact that
counsel's arguments "put the issue of whether [the defendant]
knowingly waived his right to remain silent squarely before the
court." Id.
-19-
"While it would have been preferable for the trial judge to
have specifically stated whether or not there was a knowing and
intelligent waiver of rights by the defendant," Chapman, 448 F.2d
at 1387 n.8, guided by the foregoing decisions we conclude that the
district court's finding of a knowing and intelligent waiver is
sufficiently reflected in the record to obviate a remand for
further factual determination. At the suppression hearing, DEA
Special Agent Karl Winter described his interrogation of Andrews
approximately two hours after Andrews was arrested for DUI. Winter
testified that he read Andrews the Miranda warnings, and that
Andrews indicated that he understood them. Winter also responded
affirmatively when the prosecutor asked whether Andrews had
appeared to be "able to reason and understand what [they] were
discussing." In overruling Andrews' motion to suppress, the
district court stated, "I think as far as the statements were
concerned, I accept the testimony of the officers. I think that
[Andrews] was given his Miranda warnings. I think he freely gave
whatever statements . . . were given. I think those statements
were taken in appropriate fashion and the motion will be overruled
as to the statements." The district court apparently credited
Winter's statement that Andrews said he understood the Miranda
rights which were read to him. The record therefore reflects a
finding by the district court that Andrews knowingly and
intelligently waived his rights under Miranda. See Shabazz, 446
F.2d at 79 (where district court's statement crediting officer's
testimony amounted to a "legal finding of ``unmistakable clarity'").
-20-
The cases cited by Andrews on this issue, Edwards v. Arizona,
451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and United
States v. Bradshaw, 935 F.2d 295 (D.C. Cir. 1991), are
distinguishable. In Edwards, the Supreme Court held that "neither
the trial court nor the Arizona Supreme Court undertook to focus on
whether Edwards understood his right to counsel and intelligently
and knowingly relinquished it." See id., 451 U.S. at 483-84, 101
S. Ct. at 1884. However, that conclusion was supported by the
Arizona Supreme Court's reliance on Schneckloth v. Bustamonte,10 in
which the Court "declined to impose the ``intentional relinquishment
or abandonment of a known right or privilege' standard and required
only that . . . consent [to search] be voluntary . . . ." Id. at
483, 101 S. Ct. at 1884. Similarly in Bradshaw, where the D.C.
Circuit held that the district court "made no finding with respect
to Bradshaw's understanding of his rights," the record revealed
that the district court "considered only whether Bradshaw's waiver
was voluntary . . . ." Id., 935 F.2d at 298, 300.11 Because the
record does not contain similar affirmative indications that the
district court failed to decide whether Andrews made a knowing and
intelligent Miranda waiver, Edwards and Bradshaw are
distinguishable. The record adequately reflects the district
court's finding that Andrews' waiver was knowing and voluntary.
10
412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
11
At the suppression hearing in Bradshaw, the government
argued that a non-knowing waiver of Miranda rights could not be
found absent police coercion, and the district court apparently
adopted that position. Id., 935 F.2d at 298.
-21-
3
Andrews contends, however, that his waiver was not knowing and
intelligent, because he was still drunk when he spoke to federal
agents following his arrest for DUI, and therefore the district
court erred by denying his motion to suppress. When reviewing a
district court's denial of a motion to suppress, premised on an
alleged violation of Miranda, we "must give credence to the
credibility choices and findings of fact of the district court
unless clearly erroneous." United States v. Raymer, 876 F.2d 383,
386 (5th Cir.), cert. denied, 493 U.S. 870, 110 S. Ct. 198, 107 L.
Ed. 2d 152 (1989). The determination that a defendant's Miranda
waiver was knowing and intelligent is a finding of fact which we
review for clear error.12 See United States v. Willis, 525 F.2d
657, 659 (5th Cir. 1976) (holding that district court's findings
"were not clearly erroneous" where "[t]here was . . . sufficient
evidence . . . that the defendant's waiver of his rights was
knowing and intelligent"). We will not find a district court's
factual determination to be clearly erroneous unless we are left
with the definite and firm conviction that a mistake has been
committed. Mitchell, 964 F.2d at 457-58.
Andrews emphasizes that approximately two hours before the
interrogation he was arrested for DUI and failed several roadside
sobriety tests. According to Patrolman Adams' testimony, Andrews
was unable to walk a straight line, and he "stumbled through"
12
"The ultimate issue of voluntariness is a legal issue,
however, which requires the appellate court to make an independent
determination." Raymer, 876 F.2d at 386.
-22-
reciting the alphabet from the letter "O" and counting backwards
from 25 to 10. Andrews also failed a portable breathalyzer test,
and Adams testified that at the time of his arrest Andrews smelled
of alcohol and exhibited slurred speech. Andrews testified that at
the time of the interrogation he "was . . . rudely awakened by the
jailer . . . had drank that day and . . . had not slept good the
night before." Andrews testified, "I was, basically, I was not in
that good of shape." When asked whether he was "still feeling the
effects of alcohol" when interrogated, Andrews responded
affirmatively: "By reading the statements that they say I'd made,
most definitely, I would. I would not have made some of the
statements if I had not been feeling under the effects still."
Andrews further testified, "If I had been totally straight, I would
not have said a word to [the federal agents]. . . . . If I had not
been drinking, I would not have spoken to them without a lawyer
present."
The evidence of Andrews' intoxication pertains primarily to
the time of his arrest, roughly two hours before he waived his
Miranda rights, except for his testimony that he would not have
spoken to the agents if he hadn't been drunk. The latter testimony
tends to show that he was too intoxicated at the time of the
interrogation to understand his Miranda rights. However, Andrews'
testimony was contradicted by the testimony of two agents who
interrogated Andrews. Special Agent Raymond Parmer, of the United
States Customs Service, testified that he and other interrogating
agents "tried to make sure [Andrews] had enough time [to] recover
-23-
from his inebriation before [they] interviewed him in any way."
Parmer further testified that at the time of the interrogation
Andrews did not appear inebriated. DEA Special Agent Karl Winter
testified that at the time of the interrogation it "appeared that
[Andrews] had been drinking, but . . . he seemed pretty reasonable"
and "aware of his surroundings and everything . . . ." Winter
also responded affirmatively when the prosecutor asked whether
Andrews appeared to be "able to reason and understand what [they]
were discussing." Finally, Winter testified that he read Andrews
the Miranda warnings, and that Andrews indicated he understood
them.
The district court was in the best position to judge the
weight and credibility of the conflicting evidence regarding
Andrews' condition, and could have concluded that Andrews was not
so drunk when interrogated that he did not understand his rights
and the consequences of relinquishing them. As a result, the
district court's finding that Andrews knowingly and intelligently
waived his rights under Miranda was not clearly erroneous, and
Andrews has not demonstrated that the district court erred by
denying his motion to suppress.
C
Andrews further contends that he is entitled to reversal
because of the prosecutor's improper comments at trial. "Improper
comments by a prosecutor may constitute reversible error where the
defendant's right to a fair trial is substantially affected."
United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.
-24-
1990). "The pertinent factors to consider include: (1) the
magnitude of the prejudicial effect of the statements; (2) the
efficacy of any cautionary instruction; and (3) the strength of the
evidence of the defendant's guilt." Id. "A criminal conviction is
not to be lightly overturned on the basis of a prosecutor's
comments standing alone. The determinative question is whether the
prosecutor's remarks cast serious doubt on the correctness of the
jury's verdict." United States v. Iredia, 866 F.2d 114, 117 (5th
Cir.) (citation omitted), cert. denied, 492 U.S. 921, 109 S. Ct.
3250, 106 L. Ed. 2d 596 (1989), cited in Anchondo-Sandoval.
Because Andrews failed to object to any of the prosecutor's
comments, however, he bears an even greater burden: we will
reverse only if the prosecutor's conduct amounts to plain error.
See United States v. Wicker, 933 F.2d 284, 292 (5th Cir.) (applying
plain error standard where defendant's attorney failed to object to
prosecutor's comments), cert. denied, ___ U.S. ___, 112 S. Ct. 419,
116 L. Ed. 2d 439 (1991).
"Plain error may be recognized ``only if the error is so
obvious that our failure to notice it would seriously
affect the fairness, integrity, or public reputation of
judicial proceedings and result in a miscarriage of
justice.' The burden of showing plain error is a heavy
one, and this [C]ourt will notice plain error only in
exceptional circumstances.
Id. at 291 (citations omitted). Andrews has not crossed that
threshold.
-25-
1
Andrews first argues that the prosecutor argued facts
unsupported by the evidence during closing argument, when she
questioned the profitability of Andrews' tug boat operation. At
trial the prosecutor asked Andrews, "The daily rent . . . under the
lease for that tugboat was eight hundred dollars a day; isn't that
correct, Mr. Andrews?" Andrews answered that that was correct. In
closing, the prosecutor argued:
They thought they were being smart, they thought they
were being sneaky[,] and they thought they could fool the
Government by having a sham front business. We'll have
a lease that says we're going to pay eight hundred
dollars a day rent. Now, if you believe that, I mean,
really. What kind of profit are you going to make with
expenses like that[?]
Record on Appeal, vol. 4, at 531. Andrews contends that the
prosecutor's argument was improper, because there was no evidence
in the record that a tug boat service would not be profitable with
rental expenses of $800 per day. See United States v. Morris, 568
F.2d 396, 401 (5th Cir. 1978) (stating that prosecutor generally
may not "inject into his argument any extrinsic or prejudicial
matter that has no basis in the evidence").
Assuming arguendo that the prosecutor's remarks were improper,
reversal is inappropriate because Andrews has not demonstrated
plain error. Andrews baldly asserts that the prosecutor's
misconduct was so obvious that our failure to notice it would
seriously affect the fairness, integrity, or public reputation of
judicial proceedings and result in a miscarriage of justice.
However, aside from asserting that "there is very little evidence
-26-
of the defendant's guilty knowledge" in this case, Andrews fails to
present an argument, based on the record or the law, which would
justify a conclusion that the prosecutor's comment "cast[s] serious
doubt on the correctness of the jury's verdict," Iredia, 866 F.2d
at 117, or that this is an "exceptional" case which merits a
finding of plain error. Wicker, 933 F.2d at 291.13 It is not our
place to make such arguments on Andrews' behalf. As he has failed
to do so, he is not entitled to reversal.
2
Andrews also contends that the evidence did not support the
prosecutor's inference that the diagram in Andrews' red notebook
depicted a drug importation network. In the diagram, the word
"Peru" and the abbreviations "Col", "Ven", and "Arg." appear above
the word "Panama". Four lines connect "Panama" to the word and
three abbreviations appearing above it, more or less in the fashion
of spokes in a wagon wheel. The words and abbreviations "Central
Fla", "West Fla.", and "Ga. to Gina", as well as the names of
several roads in southern Florida, appear below the word "Panama",
and are connected to "Panama" by a vertical line and descending
13
We have reviewed the decisions cited by Andrews, and none
of them supports the proposition that the prosecutor committed
plain error. Wicker))which Andrews cites specifically for that
proposition))is to the contrary. In Wicker the prosecutor did not
commit plain error by saying, "What real estate broker have you
ever heard of that pays $25,905 for his clients in a real estate
transaction? I don't know of anybody that would do that . . . ."
Id., 933 F.2d at 291-92. We explained that the prosecutor's
"comments were primarily rhetorical," and that "[n]one could fairly
be understood to express a personal belief by the prosecutor in
Wicker's guilt." Id. at 292.
-27-
arrows. Andrews testified that his daughter Gina lived in Georgia.
The prosecutor argued at closing:
[Andrews] had a diagram in his notebook that was in his
car listing four major source countries of drugs, Peru,
Colombia, Venezuela, Argentina and they're all converging
on Panama where his dope boat is located. They could
take the marijuana, whatever, from these countries put it
on the boat in Panama and take it to the United States,
central Florida, west Florida. This is a drug
distribution network. That's plain and simply, all it
is.
Record on Appeal, vol. 4, at 512.14 Andrews contends that no
evidence supported the prosecutor's inference that the diagram
depicted a drug distribution network, and that this "was an unfair
inference that was highly prejudicial to the defendant." We
disagree.
Although the evidence did not support the prosecutor's
statement that Venezuela and Argentina are major sources of illegal
drugs imported into the United States,15 Andrews admitted at trial
that Colombia and Peru are source countries. Because the evidence
supports the conclusion that Colombia and Peru are sources of
illegal drugs, it is reasonable to infer that Andrews' diagram
depicted the importation of drugs into the United States from those
countries via Panama. The prosecutor's ultimate conclusions))that
14
The prosecutor also argued, "Jimmy is the man in Colombia
with the drugs, just like in the little drawing, the Colombia,
Peru, Venezuela."
15
Andrews testified that he didn't think either Venezuela
or Argentina was a source of illegal drugs, but he testified that
he would not disagree with a DEA agent if the agent said Argentina
was a source. The government does not contend that any evidence
established that Argentina and Venezuela are major source
countries.
-28-
the diagram depicted the importation of drugs into the United
States, and Andrews therefore was aware of a scheme to import
marijuana))were reasonable inferences from the evidence. Andrews
fails to show plain error. See United States v. Morris, 568 F.2d
396, 401 (5th Cir. 1978) ("The purpose of summations is for the
attorneys to assist the jury in analyzing, evaluating and applying
the evidence. . . . The assistance permitted includes counsel's
right to state his contention as to the conclusions that the jury
should draw from the evidence." (emphasis omitted)).
3
Andrews further argues that the prosecutor engaged in
misconduct by inferring that Andrews docked the tug boat in
Pascagoula, rather than a larger port such as New Orleans or Miami,
in order to avoid detection by the United States Customs Service.
On cross-examination Andrews explained that he chose the Pascagoula
port because it was cheaper. However, in closing the prosecutor
argued that Andrews chose Pascagoula because it had "the lowest
level of law enforcement," whereas Miami and New Orleans had "a lot
of Customs enforcement." Andrews contends that the prosecutor's
argument was not supported by the evidence. We disagree. The
evidence showed that the boatyard where the Concord docked at
Pascagoula is small, isolated, and secluded, and is not a busy
docking area. The prosecutor reasonably inferred from those facts
that docking the Concord at Pascagoula exposed Andrews to less risk
of detection by law enforcement, and that was a factor in Andrews'
-29-
decision to dock the tug boat there. Andrews has not demonstrated
plain error.16
4
Andrews also contends that the prosecutor engaged in
misconduct by expressing her personal opinion of his credibility.
See Anchondo-Sandoval, 910 F.2d at 1238 (stating that "it is
improper and highly inappropriate [for the prosecutor] to interject
his or her personal opinion of the defendant's veracity into the
decision-making process"). The record does not support Andrews'
argument.
It is undisputed that Andrews intended to have the fuel tanks
of the Concord drained in Pascagoula. Andrews testified that the
fuel had become contaminated:
Q [by defense counsel] And did you have any knowledge
of any fuel problems . . . ?
A When)) the first crew stated to me, when they pulled
the fuel out, there was a tanker sitting next to it and
it was raining cats and dogs. Down south there, it rains
about like it does here and that)) the fuel was
contaminated.
Record on Appeal, vol. 3, at 374. In her closing argument, the
prosecutor contended that Andrews "made up" a story "that the fuel
tanks were going to be cleaned because it had been raining."
16
With respect to all of the foregoing claims of
prosecutorial misconduct, we note that the district court gave the
following jury instruction: "Remember that any statements,
objections, or arguments made by the lawyers are not evidence.
. . . In the final analysis . . . it is your own recollection and
interpretation of the evidence that controls in the case. What the
lawyers say is not binding on it." In Morris, we held that an
improper statement by the prosecutor was harmless, in light of the
district court's instruction that "the attorneys' statements are
not evidence to be considered by the jury." Id., 568 F.2d at 402.
-30-
Referring to photographic exhibits which depicted the fuel tanks of
the Concord, the prosecutor argued that it was impossible for the
fuel to be contaminated by rain because the manhole covers to the
fuel tanks were located indoors, and thus could not be reached by
rain. She argued that Andrews concocted the contamination-by-rain
scenario because he intended to drain the fuel tanks and unload the
marijuana hidden inside.
Andrews contends that (1) the prosecutor mischaracterized his
testimony, because he "never testified that rain entered the fuel
cells through the manhole covers;" and (2) the prosecutor's
statement that Andrews "made up" the story about contamination by
rain was therefore nothing more than the prosecutor's unfounded
personal opinion of his credibility. We disagree. Andrews'
testimony can reasonably be construed as a statement that rain
entered the fuel tanks of the Concord, and absent evidence of some
means of entry other than the manhole covers,17 it was reasonable
for the prosecutor to construe Andrews' testimony as a statement
that the rain entered the fuel tanks through the manhole covers.
The prosecutor did not err by arguing to the jury, based on the
evidence, that Andrews testified to an impossibility. Andrews has
not demonstrated plain error.
5
Andrews also contends that the prosecutor made an
impermissible "conscience of the community" argument, inciting the
17
Andrews does not argue that the record contains any such
evidence.
-31-
emotions and prejudices of the jury by emphasizing Andrews'
decision to import drugs at Pascagoula despite his lack of
connections to that community. This argument is without merit.
On cross-examination the prosecutor elicited information from
Andrews which demonstrated his lack of personal connections to
Pascagoula and to Mississippi: the fact that he had never lived in
Mississippi, had neither family nor long-time friends there, and
did not know the postal abbreviation for the name of the state. In
her summation the prosecutor stated that Andrews "is the man in
Miami with the crew to transport the dope and he picks out what he
thought was and what he hoped was an unsophisticated town on the
Mississippi Gulf Coast, Pascagoula, to sneak this marijuana into."
The prosecutor further argued that Andrews "planned from the very
beginning to use our harbors, our ports in this state to sneak in
two tons of marijuana. He didn't want to go to Miami, he didn't
want to go to New Orleans. He might have gotten caught. So he
decides to use Mississippi, to use our ports, our boat yards to
bring in his drugs."
Although the prosecutor emphasized Andrews' lack of
connections to Pascagoula, the record reveals that she did so to
show why Andrews docked the Concord there, and not to incite the
prejudices of the jury. The prosecutor argued that Andrews went
out of his way to dock the Concord at a small, inconspicuous
boatyard, where a shipment of marijuana might not be detected by
the United States Customs Service. See supra, part II.C.3. The
portion of the prosecutor's argument quoted in Andrews' brief
-32-
reveals that the prosecutor's purpose was to show why Andrews chose
Pascagoula: "He didn't want to go to Miami, he didn't want to go
to New Orleans. He might have gotten caught. So he decides to use
Mississippi, to use our ports, our boat yards to bring in his
drugs." The record does not support Andrews' claim that "an ``Us v.
Them' relationship between the jurors and the defendant" was
created, even inadvertently, by the prosecutor's argument. Plain
error is not shown.
6
Lastly, Andrews contends that the prosecutor improperly
commented on Andrews' failure to call a number of witnesses in his
own behalf.18 See Iredia, 866 F.2d at 118 ("The well-settled rule
is that drawing any inferences from a party's failure to call a
witness equally available to both sides is impermissible.").
Andrews contends that the prosecutor "effectively shifted the
burden of proof in this prosecution to the defendant." Assuming
arguendo that the prosecutor's remarks were improper, Andrews'
argument that the burden of proof was shifted is not supported by
the record, because the district court gave the following
instructions to the jury: "[T]he defendant is presumed by the law
to be innocent. The law does not require a defendant to prove his
innocence or to produce any evidence at all. The government has
the burden of proving the defendant guilty beyond a reasonable
doubt, and if it fails to do so, you must acquit the defendant."
18
The prosecutor referred to five potential witnesses:
Andrews' mother, Lopez, Gomez, the captain of the first crew of the
Concord, and Luis, a Costa Rican crew member.
-33-
See Iredia, 866 F.2d at 117-18 (holding that prosecutor's
comment))"if there was . . . evidence available to defense lawyers
don't you think they would put it on"))did not require reversal,
because district court's instruction))that burden was on the
government))"should have sufficiently erased any doubts as to which
party had the burden of proof"). Plain error is not shown.19
D
Andrews contends that the district court's instruction
regarding the elements of importation of marijuana was inadequate
because it failed to require the jury to find that Andrews
knowingly brought marijuana into the United States. The district
court instructed the jury :
Title 21, United States Code, Sections 952(a) and
960(a)(1), make it a crime for anyone knowingly or
intentionally to import a controlled substance.
* * *
For you to find the defendant guilty of this crime,
you must be convinced that the government has proved each
of the following beyond a reasonable doubt:
First: That the defendant brought a quantity
of marijuana into the United States from a place outside
the United States; and,
Second: That the defendant knew the substance
he was bringing into the United States was a controlled
substance.
Record on Appeal, vol. 4, at 548-49. Andrews asked for an
instruction that, in order to find him guilty, the jury must find
"First: That the defendant knowingly brought a quantity of
marijuana into the United States . . . ." The district court
19
Neither do we conclude that the prosecutor's actions,
although not individually requiring reversal, by their cumulative
effect add up to plain error.
-34-
denied the request, and Andrews contends that the jury therefore
could have convicted him of importation without finding that he
knew the marijuana was on the Concord.
"[C]ourts are given wide latitude in framing jury
instructions." United States v. Ojebode, 957 F.2d 1218, 1227 (5th
Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1291, 122 L. Ed.
2d 683 (1993). We will reverse the district court's refusal to
submit a requested jury instruction if, but only if the requested
instruction "(1) is substantially correct; (2) was not
substantially covered in the charge actually delivered to the jury;
and (3) concerns an important point in the trial so that the
failure to give it seriously impaired the defendant's ability to
present a given defense." Id. (quoting United States v. Chambers,
922 F.2d 228, 241 (5th Cir. 1991)).
The district court did not commit reversible error, because
Andrews' requested instruction was substantially covered by the
charge actually delivered to the jury. The district court
instructed the jury not to convict Andrews unless he "knew the
substance he was bringing into the United States was a controlled
substance." The jury could not have found that Andrews knew a
substance he was bringing into the United States was a controlled
substance, without finding that Andrews knew he was bringing a
substance into the United States. The district court's charge
plainly did not permit the jury to convict Andrews without first
determining that he knew the marijuana was on board the tug boat.
E
-35-
Andrews next contends that he was denied the effective
assistance of counsel guaranteed to him by the Sixth Amendment.
See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). "We ``resolve claims of inadequate
representation on direct appeal only in rare cases where the record
allow[s] us to evaluate fairly the merits of the claim.'" United
States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992) (quoting
United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert.
denied, 484 U.S. 1075, 108 S. Ct. 1051, 98 L. Ed. 2d 1013 (1988)).
Andrews contends that his trial counsel failed to call expert
witnesses who could have testified regarding (1) the legitimate
uses for a radio frequency detector such as the one found in
Andrews' car; and (2) the lack of correlation between the sketch
found in Andrews' notebook and the Concord's fuel cells. Andrews
also contends that counsel was ineffective for failing to object to
the prosecutor's improper closing argument, which now results in
review under the plain error standard.20
Andrews moved in the district court for dismissal of his trial
counsel, on the grounds that counsel was ineffective under the
standards announced in Strickland. However, the specific claims
now raised on appeal were not presented to the district court.
Andrews' pro se motion presented general allegations that counsel
failed to subpoena witnesses requested by Andrews, and the district
court denied the motion without a hearing, stating that Andrews had
20
See supra part II.C.
-36-
"not provided sufficient evidence that his court-appointed counsel
[was] ineffective."
Because Andrews' claim of ineffective assistance was not
presented below with sufficient specificity to allow the district
court "to develop the record on the merits of the allegations," "we
can only speculate on the basis for defense counsel's actions."
Higdon, 832 F.2d at 314. We therefore "decline to address the
merits of [Andrews'] ineffective assistance claim, but we do so
without prejudice to [his] right to raise the issue in a proper
proceeding pursuant to 28 U.S.C. § 2255." Id.21
III
For the foregoing reasons, we AFFIRM.
21
Lastly Andrews contends, in the alternative, that even if
none of the foregoing alleged errors warrants reversal, the
cumulative effect of all of the errors requires a new trial. In
support of that assertion, Andrews merely quotes our decision in
United States v. Canales, 744 F.2d 413 (5th Cir. 1984), for the
rule that "the cumulative effect of several incidents of improper
argument or misconduct may require reversal, even though no single
one of the incidents, considered alone, would warrant such a
result." Id. at 430. We are not persuaded that Andrews is
entitled to reversal on the basis of cumulative error. See United
States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992) ("Because we
find no merit to any of Moye's arguments of error, his claim of
cumulative error must also fail."); cf. Derden v. McNeel, 978 F.2d
1453, 1458 (5th Cir. 1992) (en banc) (holding that claim of
cumulative error does not entitle state prisoner to habeas corpus
relief unless (1) claim of cumulative error refers to errors,
rather than mere unfavorable rulings or events; (2) habeas review
is not procedurally barred; and (3) the errors more likely than not
caused a suspect verdict), cert. denied, ___ U.S. ___, 113 S. Ct.
2928, 124 L. Ed. 2d 679 (1993).
-37-