United States v. Pielago

United States Court of Appeals,
Eleventh Circuit.
No. 95-5405.
UNITED STATES of America, Plaintiff-Appellee,
v.
Adrian PIELAGO, Maria Varona, Defendants-Appellants.
Feb. 17, 1998.
Appeals from the United States District Court for the Southern District of Florida. (No. 93-594-CR-
DTKH), Daniel T.K. Hurley, Judge.
Before CARNES, Circuit Judge, and KRAVITCH and REAVLEY*, Senior Circuit Judges.
CARNES, Circuit Judge:
Appellants Maria Varona and Adrian Pielago were jointly indicted, along with two others,
in a multi-count indictment. After a one-week trial, a jury found Varona and Pielago guilty of
conspiring to possess cocaine with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1)
and 846. They appeal their convictions and sentences. We reject Varona's sentence arguments
without discussion, see 11th Cir. Rule 36-1, but two of her conviction-related arguments do warrant
discussion, although not acceptance. She contends that the indictment against her should have been
dismissed, because the government used her immunized statements to obtain it. She also contends
that her conviction must be reversed, because the government's presentation of certain evidence
against her at trial violated the proffer agreement. We reject her first contention as devoid of merit,
and her second one because she failed to raise the issue in the district court. We do not believe that
there was any error involving the proffer agreement, and we are convinced there was no plain error.
*
Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by
designation.
Pielago challenges both his conviction and sentence. We reject his conviction-related
arguments summarily, see 11th Cir. Rule 36-1. However, we find merit in his contention that his
sentence is due to be reversed, because the district court incorrectly calculated his criminal history
by treating his prior term of confinement in a community treatment center as a "sentence of
imprisonment" for purposes of U.S.S.G. § 4A1.1.
I. FACTS
In mid-1993, the City of Miami Police Department and the Drug Enforcement
Administration (DEA), through surveillance and undercover narcotics purchases, identified the
homes of Frank Novaton and Jose Varona ("Jose") as drug distribution locations. The authorities
discovered that Jose normally obtained cocaine from Novaton and brought it to his house, where he
operated his cocaine distribution business. Further investigation revealed that Adrian Pielago and
Jose's wife, Maria Varona ("Varona"), advised and assisted Jose in his drug operation. On
November 6, 1993, Jose was arrested after surveillance indicated he was about to sell eight
kilograms of cocaine that he had just received from Novaton to a drug dealer named "Carlos." For
a short time after Jose's arrest, Novaton, Pielago, "Carlos," and Varona were unaware that Jose had
been apprehended and were confused as to his whereabouts. During this confusion, Varona
delivered one kilogram of cocaine to "Carlos" in a gray tool box.
Based on the government's investigation and the evidence gathered as a result of Jose's
November 6 arrest, in December of 1993 a grand jury indicted Jose, Pielago, Rolando Caceras—who
the government then believed was "Carlos"—and Varona. The indictment charged them with
conspiring to possess cocaine with the intent to distribute it, and possession of cocaine with the
intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Initially, Jose and Varona cooperated with the government, and they intended to plead guilty
in return for a reduced sentence. Varona signed a proffer agreement, agreeing to give the
government information about the conspiracy in return for a promise to consider leniency. The
agreement provided for "use immunity," specifying that none of the information or statements
Varona provided would be used against her in any criminal proceeding, but it explicitly reserved the
government's right to pursue investigative leads derived from Varona's proffered statements and to
use any derivative evidence against her. Among her statements to the government, Varona named
Carlos Hechavarria as the real "Carlos." The government, satisfied with Varona's proffer, said that
it was willing to allow her to plead guilty to a lesser offense, namely, using a telecommunications
facility to facilitate a narcotics transaction.
Based on Jose and Varona's statements, the government sought and obtained a superseding
indictment which named Carlos Hechavarria as a conspirator and dropped the charges against
Caceras. The superseding indictment also added the use of a telecommunications facility charge,
in order to allow Varona to plead guilty to that charge.
However, Varona's cooperation ceased when her husband Jose was murdered. Fearing for
their lives, Varona and her children were taken into protective custody. Apparently, Jose had been
murdered because he had been cooperating with the government. His plea agreement had
specifically required him to testify against his co-conspirators and other drug dealers. With Jose's
death, the government needed Varona to testify, but she refused to do so. Because of her refusal,
the government rescinded its plea offer. Varona and Pielago went to trial on the superseding
indictment.
II. DISTRICT COURT PROCEEDINGS
On the first day of trial, after the jury was sworn, Varona moved to dismiss the superseding
indictment on the ground that the government had used her statements against her before the grand
jury in violation of her proffer agreement. Because she refused to ask for a mistrial, the district court
declined to rule on her motion to dismiss the indictment until after trial, warning her that under
United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), a guilty verdict might
eliminate her claim.
Hechavarria, who had pleaded guilty, testified for the government at trial, providing much
of the evidence against Varona and Pielago. Varona did not object to introduction of Hechavarria's
testimony as a breach of her proffer agreement. The jury found her and Pielago guilty of conspiring
to possess cocaine with the intent to distribute it. However, the jury acquitted Pielago of possessing
cocaine, and deadlocked on the possession and telecommunications facility charges against Varona.
Those charges were later dismissed.
Following the verdicts, the district court conducted an evidentiary hearing pursuant to
Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), in order to determine
whether the government had violated Varona's proffer agreement. The court held that the
government had not violated the proffer agreement by using Varona's statements to obtain the
superseding indictments, because it found that the government had prior knowledge of and
independent sources for the evidence used to indict Varona. Accordingly, the district court denied
Varona's motion to dismiss the superseding indictment.
The district court then conducted a sentencing hearing. At that hearing the court found
Varona and Pielago responsible for the nine kilograms of cocaine involved in the conspiracy (the
eight confiscated when agents arrested Jose plus the one in the tool box that Varona gave
Hechavarria). Based on that amount of cocaine, the district court determined that both their base
offense levels were thirty. Because Varona had a Category I criminal history, the district court
sentenced Varona to 97 months imprisonment, the minimum term for her sentencing range of 97 to
121 months.
The probation officer recommended that Pielago be given seven criminal history points,
resulting in a Category IV criminal history. Pielago objected in part, contending that he should be
given one rather than two criminal history points for his 1986 conviction for conspiring to transfer
an automatic firearm because his sentence of six months had been served in a community treatment
center. The district court disagreed, because it considered the six-month sentence to a community
treatment center to be a "sentence of imprisonment" under § 4A1.1, which prescribed two criminal
history points. Accordingly, Pielago was given a Category IV criminal history, instead of a
Category III. As a result, Pielago's sentencing range was 135 to 168 months. The court sentenced
him to 140 months imprisonment.
III. STANDARDS OF REVIEW
We review the district court's denial of Varona's motion to dismiss the indictment for an
abuse of discretion. See United States v. Thompson, 25 F.3d 1558, 1562 (11th Cir.1994). Because
Varona did not object to Hechavarria's testimony at trial, we review only for plain error the
admission of that testimony. See Fed.R.Crim.P. 52(b). Finally, we review the district court's
interpretation of the sentencing guidelines de novo. See United States v. Coe, 79 F.3d 126, 127 (11th
Cir.1996).
IV. DISCUSSION
A. WHETHER THE SUPERSEDING INDICTMENT SHOULD HAVE BEEN DISMISSED
Varona challenges the district court's denial of her motion to dismiss the superseding
indictment. Because the grand jury which issued the superseding indictment heard her immunized
statements, she contends that indictment should have been dismissed. Varona relies on United
States v. Tantalo, 680 F.2d 903, 909 (2d Cir.1982), in which the Second Circuit adopted a per se rule
that an indictment must be dismissed as to any defendant whose immunized statement or testimony
was heard by the grand jury returning the indictment. However, to the extent that Tantalo
establishes a per se rule1, we disagree with it. We have never accepted a per se rule for dismissing
indictments obtained as a result of a defendant's immunized testimony; the facts of this case show
why a per se rule is inappropriate.
The grand jury returned the original indictment against Varona based on the testimony of a
DEA case agent named Lucas. Subsequently, Varona made her proffer statements inculpating
Hechavarria. Later, the same grand jury heard Agent Lucas' recitation of Varona's proffer
statements and returned the superseding indictment. The superseding indictment reflected but two
substantive changes: (1) Hechavarria was substituted for Caceras in the conspiracy count; and (2)
a count for using a telecommunications facility to facilitate a narcotics transaction was added against
Varona.
It is clear that the addition of the telecommunications facility count was harmless; that
charge was dismissed after the jury deadlocked on it. So, too, was the change in the conspiracy
count. Varona does not challenge the validity of the conspiracy count in the original indictment, nor
does she contend that there would have been a material variance between the proof and the
indictment if that court had not been modified. Varona's proffer statements were only used "against"
1
The Tantalo Court held that a superseding indictment should have been dismissed where the
government obtained an additional count, for which the defendant was ultimately convicted, by
using the defendant's immunized testimony before the grand jury. See 680 F.2d at 904-06.
Although the Second Circuit stated that the whole indictment should have been dismissed "as a
matter of law," see id. at 909, we are not sure it intended a broad rule requiring that the
indictment be dismissed in every instance where the government uses immunized testimony to
obtain a superseding indictment. The Second Circuit reversed the defendant's conviction
because the government failed to make a showing that it had legitimately obtained the
information upon which it indicted the defendant, and the trial court failed to conduct a Kastigar
hearing on the matter. See id. at 908-09. The circumstances of this case are different.
her to accuse her of conspiring with Jose, Pielago, and Hechavarria, instead of with Jose, Pielago,
and Caceras. Either way, she was still on the hook for her participation in the conspiracy; it matters
not with whom she shared that hook. See, e.g., United States v. Davis, 679 F.2d 845, 851 (11th
Cir.1982)("The existence of the conspiracy agreement rather than the identity of those who agree
is the essential element to prove conspiracy."). Therefore, the use of Varona's proffer statement
resulting in a change of the indictment did not prejudice her. Accordingly, the district court did not
abuse its discretion in refusing to dismiss the superseding indictment.
B. WHETHER THE GOVERNMENT VIOLATED THE PROFFER AGREEMENT BY USING
HECHAVARRIA AS A WITNESS AGAINST HER
Because Varona did not object to the government calling Hechavarria as a witness, we can
only reverse her conviction if it was plain error for the district court to allow him to testify. See
Fed.R.Crim.P. 52(b). The plain error rule places a daunting obstacle before Varona. In United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993), the Supreme
Court held that for a judgment to be reversed for plain error, three conditions must exist: (1) a legal
error must have been committed; (2) that error must be plain; and (3) the error must have affected
the substantial rights of the appellant.
Even if all three requirements are met, it is still within the court of appeals' discretion
whether to correct the forfeited error. See United States v. King, 73 F.3d 1564, 1572 (11th
Cir.1996); United States v. Vazquez, 53 F.3d 1216, 1221 (11th Cir.1995). Moreover, that discretion
may be exercised "to notice a forfeited error only if ... the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings." Johnson v. United States, --- U.S. ----,
----, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997); accord United States v. Gaudin, 515 U.S. 506,
527, 115 S.Ct. 2310, 2322, 132 L.Ed.2d 444 (1995)("A court of appeals should not exercise that
discretion unless the error seriously affects the fairness, integrity or public reputation of judicial
proceedings")(internal quotation marks and brackets omitted).
The narrowness of the plain error rule is a reflection of the importance, indeed necessity,
of the contemporaneous objection rule to which it is an exception. The contemporaneous objection
rule fosters finality of judgment and deters "sandbagging," saving an issue for appeal in hopes of
having another shot at trial if the first one misses. See, e.g., Esslinger v. Davis, 44 F.3d 1515, 1525
and n. 36 (11th Cir.1995)(contemporaneous objection rule "deters "sandbagging,' the withholding
of claims in an effort to get more than "one bite at the apple.' "): United States v. Joshi, 896 F.2d
1303, 1307 and n. 3 (11th Cir.1990)(noting "the Supreme Court's "admonition against
"sandbagging" on the part of defense lawyers' who intentionally decline to object to a potentially
unconstitutional trial procedure in order to inject reversible error into the proceeding."); Spencer
v. Kemp, 781 F.2d 1458, 1473 (11th Cir.1986)("contemporaneous objection rules prevent a
defendant from "sandbagging,' taking a chance on a jury verdict while reserving his claim in the
event of an unfavorable verdict").
The contemporaneous objection rule also promotes the salutary interest of making the trial
the main event. Failure to enforce it "tends to detract from the perception of the trial of a criminal
case ... as a decisive and portentous event." Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497,
2508, 53 L.Ed.2d 594 (1977). Moreover, requiring timely objections allows trial courts to develop
a full record on the issue, consider the matter, and correct any error before substantial judicial
resources are wasted on appeal and then in an unnecessary retrial. See United States v. Sorondo, 845
F.2d 945, 948-49 (11th Cir.1988). A full record and a prior decision in the district court are essential
ingredients to our substantive review of issues—they flesh out an issue in a way the parties' briefs
may not.
"In the absence of plain error ... it is not our place as an appellate court to second guess the
litigants before us and grant them relief they did not request, pursuant to legal theories they did not
outline, based on facts they did not relate." Adler v. Duval County School Bd., 112 F.3d 1475, 1481
n. 12 (11th Cir.1997). Because the contemporaneous objection rule is essential to the integrity and
efficiency of our judicial process, we have stressed that "[t]he plain error test is difficult to meet."
United States v. King, 73 F.3d 1564, 1572 (11th Cir.1996); accord, e.g., United States v. Sorondo,
845 F.2d at 948-49; United States v. Chaney, 662 F.2d 1148, 1152 n. 4 (5th Cir. Unit B 1981). We
turn now to application of that test to the issue at hand. Of course, there can be no plain error if
there was no error at all. So, we begin with this inquiry: was there any error, plain or not?
Varona's proffer agreement precludes the government from using in criminal proceedings
against her any "information or statements" it acquired from her in the course of her cooperation.
She contends that the government's use of Hechavarria's testimony, which it acquired only because
of Varona's statements, is a breach of the proffer agreement. Therefore, she argues, the district court
should not have allowed Hechavarria to testify against her.
The construction of proffer agreements, like plea agreements, is governed generally by the
principles of contract law, as we have adapted it for the purposes of criminal law. See United States
v. Weaver, 905 F.2d 1466, 1472 (11th Cir.1990); Rowe v. Griffin, 676 F.2d 524, 528 (11th Cir.1982)
(interpreting immunity agreements pursuant to principles applied to interpretation of plea
agreements); cf. United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir.1990) ("Plea agreements
are interpreted and applied in a manner that is sometimes likened to contractual interpretation.").
"This analogy, however, should not be taken too far." Jefferies, 908 F.2d at 1523. A
"hyper-technical reading of the written agreement" and "a rigidly literal approach in the construction
of language" should not be accepted. In re Arnett, 804 F.2d 1200, 1203 (11th Cir.1986)(internal
citation and quotes omitted). The written agreement should be viewed "against the background of
the negotiations." Id. Any ambiguities in the terms of a proffer agreement should be resolved in
favor of the criminal defendant. See Rowe, 676 F.2d at 526 n. 4.
Paragraph three of the proffer agreement in this case states, in relevant part:
No information or statement provided by Maria Varona may be used against [her] in this
case or any other criminal investigation....
Gov. Ex. 48 at 1-2, para. 3. However, the proffer agreement further provides in paragraph four that:
The government also expressly reserves the right to pursue any and all investigative leads
derived from Maria Varona's statements or information and use such derivative evidence in
any criminal or civil proceeding against her and/or others.
Gov. Ex. 48 at 2, para. 4. Those two paragraphs set out two separate terms: (1) the government may
not use the information or statements obtained from Varona directly against her, which is to say it
may not use them as evidence to obtain an indictment or guilty verdict; but (2) the government may
use evidence derived from her information or statements against her to obtain an indictment or guilty
verdict.
If only paragraph three existed, we might well agree with Varona and conclude that the
government, by using testimony it would not have obtained but for the "information" provided by
Varona, violated her proffer agreement. Without the information she provided, the government
would not have known that "Carlos" was Hechavarria, instead of Caceras, and therefore would not
have indicted Hechavarria. Had the government not indicted Hechavarria, he would have had no
incentive to testify against Varona. Therefore, the government "used" Varona's information against
her in the broadest sense of the term.
However, paragraph four explicitly allows the government to use evidence derived from the
information and statements Varona proffered against her. We do not believe that the two
paragraphs, when properly construed, conflict. It is a cardinal principle of contract law that no term
of a contract should be construed to be in conflict with another unless no other reasonable
construction is possible. See Guaranty Financial Services, Inc. v. Ryan, 928 F.2d 994, 1000 (11th
Cir.1991); United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983). In this
case, paragraph four should be read as qualifying, instead of contradicting, paragraph three. Both
paragraphs describe the governments' right to use evidence acquired from Varona's proffer.
Paragraph three, read together with paragraph four, prohibits the government from directly using
the statements and information which made up Varona's proffer against her. Paragraph four
correspondingly allows the government to use evidence derived from her proffer statements against
Varona. The fact that Varona's trial counsel did not object to Hechavarria's testimony indicates that
her lawyer, the same lawyer who negotiated the proffer agreement for Varona, believed then that
the government was within its rights to put Hechavarria on the stand.
Moreover, even if the provisions of the two paragraphs conflicted, another contract
interpretation principle would vindicate the government's position. When two contract terms
conflict, the specific term controls over the general one. See United States Postal Service v.
American Postal Workers Union, 922 F.2d 256, 260 (5th Cir.1991); Boatmen's National Bank of
St. Louis v. Smith, 835 F.2d 1200, 1203 (7th Cir.1987)("Where the document contains both general
and specific provisions relating to the same subject, the specific provision controls"). In Varona's
proffer agreement, paragraph three is the general provision, using broad language to forbid the
government from using statements or information it acquired from Varona against her; paragraph
four is the specific term, permitting the government to use evidence it derived from the information
and statements she gave against her.
Consistent with paragraph four, the more specifically applicable provision, the government's
use of Hechavarria's testimony did not breach the agreement. The government used Varona's proffer
statements to indict Hechavarria. As a result of his indictment, Hechavarria decided to cooperate,
plead guilty and testify against Varona and Pielago. Therefore, by its very nature, Hechavarria's
testimony was derivative evidence. See Black's Law Dictionary 443 (6th Ed.1991)(defining
derivative as "coming from another; taken from something preceding; secondary ... [a]nything
obtained or deduced from another"). The government was only forbidden from introducing Varona's
statements and the information she provided into evidence against her, and did not violate the proffer
agreement by putting Hechavarria on the stand. Because it would not have been error for the district
court to allow Hechavarria to testify even if there had been an objection, there is no plain error.
The dissenting opinion leaves us unmoved. Its position is based upon an interpretation of
the term "derivative evidence" in paragraph four that is at variance with the plain meaning of that
term. The dissenting opinion constructs a hypothetical involving hidden cocaine, which might be
interesting to discuss in an academic setting, but it bears no resemblance to the facts of this case.
What happened in this case is that Varona made statements conveying information to the
government. The government did not introduce any of those statements into evidence against
Varona. Instead, it used what she said to obtain an indictment of Hechavarria. His indictment was
derived from Varona's statements and information. Hechavarria's indictment was not evidence
against Varona. Instead, the government used Hechavarria's indictment in its successful effort to
persuade him to cooperate. Thus, his cooperation including his testimony against Varona was
derived, in part, from an indictment which was in turn derived from statements and information
Varona gave. We do not think that Hechavarria's testimony, which is two steps removed in the
derivative chain from Varona's statements and information, can be considered anything but
"derivative evidence," which paragraph four expressly permits the government to use.
Moreover, even if we were to conclude that it was error for the district court to have allowed
Hechavarria's testimony, we would not conclude that such an error was plain error. In practice,
errors become plain errors in either of two ways. First, an intervening decision of this Court or the
Supreme Court squarely on point may make an error plain. See, e.g., United States v. Antonietti, 86
F.3d 206, 208-09 (11th Cir.1996)(intervening decision of this Court made counting seedlings as
marijuana plants plain error); United States v. Walker, 59 F.3d 1196, 1198 (11th
Cir.1995)(intervening decision of the Supreme Court holding the Gun Free School Zone Act
unconstitutional made defendant's conviction under the law plain error). Second, errors have been
found to be plain where they are particularly egregious, and strike at a core principle which the
violated rule or law embodies. See, e.g., United States v. Quinones, 97 F.3d 473, 475 (11th
Cir.1996)(finding plain error where district court failed to ensure that the defendant understood the
nature of the charges against him, one of the core principles of Fed.R.Crim.P. 11).
The dissenting opinion never satisfactorily explains why, if the error in interpretation it
perceives is "plain," that error escaped the attention not only of the district court judge but also of
the very defense counsel who negotiated the terms of the agreement. Nor does the dissent
adequately explain how such a "plain" error could appear, even after briefing and oral argument, to
be no error at all to two-thirds of this panel. We have previously recognized that "no one is perfect,
least of all federal appellate judges." United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993).
Notwithstanding that truth, if the "plain" requirement of the Rule 52(b) plain error provision is to
have any teeth, when two of the three judges who address a matter conclude that there is no error
at all, that must mean there is no plain error. As the Supreme Court has held, "[a]t a minimum,
court[s] of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under
current law." United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508(1993).
C. WHETHER CONFINEMENT IN A COMMUNITY TREATMENT CENTER IS A
SENTENCE OF IMPRISONMENT FOR THE PURPOSES OF § 4A1.1
Pielago challenges the district court's determination of his criminal history category.
Specifically, he argues that the district court should have given him one less criminal history point,
because his 1986 six-month sentence to a community treatment center should not have been
considered a "sentence of imprisonment" for the purposes of § 4A1.1(b) of the Sentencing
Guidelines. That criminal history point makes a difference, because without it his criminal history
category is III, which means a sentencing range of 121 to 151 months instead of 135 to 168 months.
The issue Pielago presents is one of first impression for this Court, although two of our sister circuits
have addressed matters relating to it.
We begin, as always, with the text of the Sentencing Guidelines. U.S.S.G. § 4A1.1 provides,
in relevant part:
The total points from items (a) through (f) determine the criminal history category in the
Sentencing Table ...
(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted
in (a)
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for
this item.
Pielago contends that a six-month sentence to a community treatment center falls within subsection
(c) instead of (b), because it is not a "sentence of imprisonment." For a definition of "sentence of
imprisonment" within the meaning of § 4A1.1(b) we look to the Sentencing Guidelines'
commentary. Note 1 of the commentary to § 4A1.1 refers us to § 4A1.2 for a definition of the term.
Section 4A1.2(b) states that "sentence of imprisonment means a sentence of incarceration ...," a
definition that is not particularly helpful to our analysis.
Fortunately, the background commentary to § 4A1.1 sheds some light on what the
Sentencing Commission meant by a "sentence of imprisonment":
Subdivisions (a), (b), and (c) of § 4A1.1 distinguish confinement sentences longer than one
year and one month, shorter confinement sentences of at least sixty days, and all other
sentences, such as confinement sentences of less than sixty days, probation, fines, and
residency in a halfway house.
U.S.S.G. § 4A1.1 comment. (backg'd). That commentary makes it clear that a sentence to a halfway
house is not a "sentence of imprisonment." But the commentary uses residency in a halfway house
as an example, not an exhaustive list of the types of confinement that are not "sentences of
imprisonment." The question we must decide, then, is whether for the purposes of § 4A1.1
confinement in a community treatment center equates to residency in a halfway house or instead to
a sentence of confinement. Our circuit has no decision close to point.
We begin by looking at how other circuits have answered related questions. In United States
v. Rasco, 963 F.2d 132, 135-36 (6th Cir.1992), the Sixth Circuit concluded that confinement in a
community treatment center as a result of a parole revocation was "imprisonment" under § 4A1.2(k).
The Rasco Court reasoned that the Sentencing Commission was focusing on the reason for the
defendant's confinement, not his place of confinement. See id. at 135. The court explained that
because § 4A1.2(k) deals with confinement as a result of parole revocation, the Commission was
obviously concerned with the reason why the defendant had been confined, the defendant's failure
to stay out of trouble while on parole. See id. at 135-36. Therefore, it was irrelevant where the
defendant spent his sentence; only the fact that the his parole had been revoked was determinative.
See id. However the Rasco Court did "recognize that this interpretation arguably conflicts with the
background commentary to section 4A1.1" Id. at 136.
Whether it conflicts with the commentary or not, Rasco is distinguishable from this case.
Section 4A1.2(k), which is concerned with calculating the criminal histories of prior parole
violators, implicates a different set of policy concerns than does § 4A1.1. The Sentencing
Commission had a reason to more harshly sanction those who have violated parole in the past, even
though the resulting incarceration was only in a halfway house or community treatment center.
However, Pielago's stay in a community treatment center was not the consequence of a parole
violation. He was sentenced directly to that confinement. Therefore, the Rasco Court's reasoning
is not applicable to this case. See also United States v. Jones, 107 F.3d 1147, 1161-65 (6th
Cir.1997) (limiting the Rasco decision, and holding that a sentence of home detention is not a
"sentence of imprisonment" for § 4A1.1 purposes).
A year later, the Ninth Circuit, addressing exactly the same issue as the Rasco Court,
concluded that a term of confinement in a community treatment center is not a "sentence of
imprisonment," even when it resulted from revocation of parole. In United States v. Latimer, 991
F.2d 1509, 1516 (9th Cir.1993), the Ninth Circuit declined to follow Rasco, and rejected the idea
that the term "sentence of imprisonment" meant anything other than precisely what it says. See id.The Latimer Court based its holding on what the Sixth Circuit acknowledged but failed to be guided
by: the background commentary to § 4A1.1. See id. at 1515. Because that commentary
distinguishes a term of confinement in a halfway house from a sentence of imprisonment, the Ninth
Circuit concluded that the question was whether a term confinement in a community treatment
center should be included along with residency in a halfway house as a sentence that is not a
"sentence of imprisonment." See id. at 1516. It answered affirmatively, noting that community
treatment centers and halfway houses are treated as equivalent forms of punishment throughout the
Sentencing Guidelines. See id. at 1512-13.
We agree with the Ninth Circuit's reasoning in Latimer. Several Sentencing Guidelines
provisions indicate that the Commission considers confinement in a community treatment center,
like confinement in a halfway house, not to be "imprisonment." Section 5C1.1(d) provides that
district courts may sentence defendants whose sentencing range is six to ten months to "community
confinement" in lieu of part of their sentence of imprisonment. Section 5F1.1 defines "community
confinement" as "residence in a community treatment center, halfway house ... or other community
facility." U.S.S.G. § 5F1.1 comment. (n.1). These two provisions indicate that the Sentencing
Commission considered a sentence to confinement in a community treatment center to be different
from a "sentence of imprisonment."
The Sentencing Guidelines also indicate that community treatment centers and halfway
houses are functionally equivalent. Section 2P1.1(b)(3) states that "if the defendant escaped from
the non-secure custody of a community corrections center, community treatment center, "halfway
house,' or similar facility, .... decrease the offense level by 4 levels." Similarly, § 5B1.4(b)(19) states
that "residence in a community treatment center, halfway house or similar facility may be imposed
as a condition of probation or supervised release." These two provisions show that the Sentencing
Commission considered time served in community treatment centers and halfway houses to be
equivalent to each other and distinct from a sentence of imprisonment.
As a matter of fact, in five of the six sections of the Sentencing Guidelines in which the term
"halfway house" appears, the term "community treatment center" appears right alongside it.
Compare U.S.S.G. §§ 2J1.6(b)(1)(B); 2P1.1(b)(3); 5B1.4(b)(19); 5C1.1(e)(2); 5F1.1 comment.
(n.1) with U.S.S.G. § 4A1.1 comment. (backg'd). The only time "halfway house" does not appear
with "community treatment center" is in the background commentary to § 4A1.1. We do not read
any significance into that omission. The Sentencing Commission simply did not make an
all-inclusive list there. Instead, "halfway house" is used only as an illustrative example of the types
of confinements that are not to be considered "imprisonment" under § 4A1.1.
For these reasons, we join the Ninth Circuit in concluding that a term of confinement in a
community treatment center, like residency in a halfway house, is not a "sentence of imprisonment"
for the purposes of § 4A1.1. As a result, § 4A1.1(c) applies in this case, and Pielago should have
been given only one criminal history point for his 1986 conviction and sentence. Accordingly, his
criminal history category should have been III and his sentencing range 121 to 151 months.
V. CONCLUSION
We AFFIRM Varona's conviction and sentence. We AFFIRM Pielago's conviction, but we
VACATE his sentence and REMAND his case to the district court for resentencing.
KRAVITCH, Senior Circuit Judge, concurring in part and dissenting in part:
I join Part IV.C of the majority opinion, which affirms Pielago's conviction, vacates his
sentence, and remands his case for resentencing.1 I respectfully disagree, however, with the
majority's disposition of Varona's appeal. In my view, the government violated Varona's proffer
agreement when, after indicting Hechavarria on the basis of Varona's immunized statement and
entering into a plea agreement with him, it had Hechavarria testify against Varona concerning the
very delivery of cocaine that she described in her statement.2 Because the government had no
legitimate and wholly independent source for Hechavarria's testimony, allowing the testimony was
1
Vacating Pielago's sentence of 140 months is appropriate even though that sentence lies
within the 121- to 151-month sentencing range that we prescribe upon remand. The district
court imposed the 140-month sentence under the assumption that the sentencing range was 135
to 168 months. Because the district court did not clearly state that it would have imposed the
140-month sentence even if the sentencing range were 121 to 151 months, we must remand the
case for resentencing. Cf. United States v. De La Torre, 949 F.2d 1121, 1122 (11th Cir.1992)
(declining to resolve a dispute as to which guideline range was applicable when the trial court
made clear that the same sentence would have been imposed irrespective of the outcome of the
dispute).
2
In her statement, Varona admitted that on November 6, 1993, after her husband's arrest, she
gave Hechavarria a scale for weighing cocaine and sold him the kilogram of cocaine that
remained in the Varona home. Interview of Maria Varona, Gov. Ex. 49, at 2. Similarly,
Hechavarria testified that Varona called him on November 6, after her husband's arrest, and
asked him to come to the Varona home. Upon Hechavarria's arrival, Varona handed him a gray
tool box, which, when opened by Hechavarria, revealed, inter alia, a weighing scale and a
kilogram of cocaine. R6: 456-57.
patent error. Moreover, the error was not harmless, given the fact that the government introduced
no other evidence at trial that would have allowed a reasonable jury to convict Varona. Varona
therefore has established the elements of plain error. See United States v. Olano, 507 U.S. 725, 732-
735, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993) (stating that plain error is clear or obvious
error that affects substantial rights, in that it is prejudicial and not harmless).
Furthermore, correcting this error on appeal would be a proper use of this court's
discretionary powers. Because Varona was sentenced to more than eight years of imprisonment for
a conspiracy conviction based solely on evidence obtained in violation of her proffer agreement, I
believe that the district court's error "seriously affect[ed] the fairness, integrity, or public reputation
of judicial proceedings." See Olano, 507 U.S. at 736-37, 113 S.Ct. at 1779 (citation omitted). I
would reverse her conviction and remand her case for a new trial.3
I.
Varona's proffer agreement, interpreted according to fundamental tenets of contract
construction, prohibited the government from acting as it did in this case. According to Paragraph
3 of the proffer agreement, "no information or statement provided by Maria Varona may be used
against [her] in this case or in any other criminal investigation...."4 Paragraph 4 merely qualified that
protection by giving the government "the right to pursue any and all investigative leads derived from
Maria Varona's statements or information and use such derivative evidence in any criminal or civil
proceedings against her and/or others."5 Interpreted together, Paragraphs 3 and 4 barred the
3
I thus dissent as to Part IV.B of the majority opinion. I concur with Part IV.A, which rejects
Varona's argument that the superseding indictment should have been dismissed.
4
Proffer Agreement of Maria Varona, Gov. Ex. 48, at 1-2, ¶ 3.
5
Id. at 2, ¶ 4. The agreement expressly stated that it did not impart "transactional immunity" to
Varona. Id. at ¶ 7.
government both from using Varona's "statements" against her and from using Varona's
"information" against her in the most direct way possible. The government violated the latter
prohibition by using Varona's information to prove, in the most direct way possible, that she
distributed cocaine; on the basis of Varona's immunized statement that she delivered cocaine to
Hechavarria, the government at Varona's trial procured Hechavarria's testimony about the same
transaction.
I respectfully believe that the majority errs in ruling otherwise. Despite its initial admonition
that, whenever possible, "no term of a contract should be construed to be in conflict with another,"
the majority concludes that the language of Paragraph 4 trumps the general term "information" in
Paragraph 3. The majority thus holds that Paragraph 4 permitted Hechavarria's testimony as merely
derivative evidence obtained from investigative leads. The majority's interpretation not only violates
its own principle of contract construction but also effectively disregards the unique language of
Paragraph 3. Unlike common proffer agreements that bar only the defendant's immunized statements
from being used in the government's case-in-chief,6 the proffer agreement in this case explicitly
prohibited the government from using Varona's "statements or information " against her.7 It is a
6
See, e.g, United States v. Chiu, 109 F.3d 624, 626 (9th Cir.1997) (stating that the defendant's
immunized statements could be used to prepare witnesses where the government only had agreed
not to "offer in evidence in its case-in-chief ... any statements made by the defendant"); United
States v. Liranzo, 944 F.2d 73, 76-77 (2d Cir.1991) (stating that the proffer agreement, which
only barred the government's use of the defendant's "statements" as evidence at trial, allowed the
government to use the defendant's immunized identification of himself as the "Frank" named in
the original indictment to refresh the informant's memory of "Frank's" identity and then to file
the superseding indictment with "Frank" correctly identified); cf. United States v. Rutkowski,
814 F.2d 594, 599 (11th Cir.1987) (holding that Fed.R.Crim.P. 11(e)(6)(D) only excludes
evidence of "statements" made in course of plea discussions and "makes no reference to anything
other than evidence of "statements' as being excludable").
7
In contrast to proffer agreements that bar only the use of "statements," those agreements that
prohibit the government's use of "information" are broad in scope. In United States v.
Carpenter, 611 F.Supp. 768, 771 (N.D.Ga.1985), the court analyzed, inter alia, an unwritten
time-honored principle of contract construction that contracts should be interpreted so as to give
meaning to each and every word. See 17A Am.Jur.2d Contracts § 387 (1991) (stating that no word
in a contract should be rejected as mere surplusage if the court can determine any reasonable
purpose for that word); id ("A construction will not be given to one part of a contract which will
annul or obliterate another part."); Fortec Constructors v. United States, 760 F.2d 1288, 1292
(Fed.Cir.1985) (describing "well accepted and basic principle that an interpretation that gives a
reasonable meaning to all parts of the contract will be preferred to one that leaves portions of the
contract meaningless").8
The majority's interpretation would render useless the protection given by Paragraph 3 to
"information" provided by Varona. Whenever the government decides to use "information" (as
opposed to "statements") provided by a defendant against that defendant at trial, the government
must take steps to procure the relevant evidence and present it at trial. According to the majority's
reasoning, these steps always render the procured evidence merely "derivative evidence" from
"investigative leads," permissible under Paragraph 4 of the agreement. The majority's interpretation
thus effectively deletes the term "information" from Paragraph 3.
agreement that "any information furnished by the defendant "would not be used against him.' "
Id. at 775. The court held that any ambiguity "should be resolved in favor of the criminal
defendant," id. at 776 (quoting Rowe v. Griffin, 676 F.2d 524, 526 n. 4 (11th Cir.1982)), and thus
the court rejected the government's argument that the defendant was only protected "against
direct use of his statements," id. at 775. See also United States v. Pelullo, 917 F.Supp. 1065,
1071 (D.N.J.1995) (holding that immunity letter stating that no "information" provided by
defendant may be used against him in any criminal case was "expressed in the broadest possible
terms" and provided full use and derivative use immunity).
8
Indeed, the very contract cases cited by the majority conclude that "[a]n interpretation that
gives a reasonable meaning to all parts of the contract will be preferred to one that leaves
portions meaningless." Guaranty Financial Services, Inc. v. Ryan, 928 F.2d 994, 999-1000 (11th
Cir.1991) (quoting United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555
(Fed.Cir.1983)).
Read together properly, Paragraphs 3 and 4 are consistent. The two provisions barred the
government from using Varona's information to inculpate her by the most direct means possible, but
they allowed the use of Varona's information to obtain "derivative evidence" from "investigative
leads." This interpretation, unlike the majority's, satisfies the majority's own requirement that "no
term of a contract should be construed to be in conflict with another unless no other reasonable
construction is possible." Guaranty Financial Services, Inc. v. Ryan, 928 F.2d at 1000 (quoting
United States v. Johnson Controls, Inc. 713 F.2d at 1555). Furthermore, only this interpretation of
the contract preserves the independent meaning of the term "information" in Paragraph 3. See 17A
Am.Jur.2d Contracts § 387; Fortec Constructors, 760 F.2d at 1292; Guaranty Financial Services,
928 F.2d at 999-1000; Johnson Controls, 713 F.2d at 1555.
An example illustrates the difference between this interpretation and that of the majority.
Assume that Varona, pursuant to this proffer agreement, told the authorities about the location of
hidden cocaine in her home. Under the majority's reasoning, the proffer agreement would allow the
government to use Varona's information to obtain a warrant, seize the cocaine, and introduce it as
evidence against Varona at trial. The majority presumably would consider the cocaine to be
evidence "two steps removed in the derivative chain from Varona's statements and information" and
therefore permitted by the "controlling" language of Paragraph 4.
Properly interpreted, however, the proffer agreement clearly would bar such a government
strategy. In order to preserve the meaning of the term "information" in Paragraph 3, the agreement
at a minimum must prohibit the government from using Varona's information to inculpate her in the
most direct way possible. The agreement thus must prohibit the government from proving Varona's
possession of cocaine by simply introducing the very cocaine that Varona herself told the
government how to locate. This direct proof of Varona's possession would constitute the use of
Varona's "information" against her, prohibited by Paragraph 3, not the use of "derivative evidence"
obtained from "investigative leads," allowed by Paragraph 4. I believe that this interpretation of the
proffer agreement, unlike the majority's, appropriately reflects the entire agreement and ensures that
the term "information" in Paragraph 3 retains independent meaning.
Having determined the plain meaning of the proffer agreement, I conclude that the
government violated the agreement in this case. Just as the government in the example above would
have used Varona's information to prove her possession of cocaine in the most direct way possible,
here the government used Varona's information to prove her distribution of cocaine in the most
direct way possible. Namely, the government used Varona's description of her delivery of cocaine
in order to obtain the recipient's testimony about the same delivery. Apart from using Varona's own
statement against her at trial (a strategy barred by Paragraph 3's protection of Varona's "statements"),
the government has no more direct way of proving Varona's distribution of cocaine. If Paragraph
3's protection of Varona's "information" is to retain independent meaning, then the agreement must
be read to bar the government's actions in this case.
Contrary to the majority's assertion, this interpretation of the proffer agreement is consistent
with the plain meaning of Paragraph 4. Even though the agreement prohibited the government from
using Varona's information to demonstrate her culpability by the most direct means possible, the
government nonetheless had ample authority to use "derivative evidence" obtained from
"investigative leads." For example, the government could have relied on Varona's implication of
Hechavarria to interview Hechavarria's neighbors. Then, consistent with the proffer agreement, one
of the neighbors possibly could have testified at Varona's trial that he frequently had seen Varona
enter Hechavarria's house with packages and leave without them and that he had been visiting
Hechavarria when Varona arrived with a package containing white powder. Unlike the use of
Hechavarria's testimony about the very transaction described by Varona, the use of the neighbor's
testimony would not constitute the direct use of Varona's information against her, and it therefore
would be permitted under Paragraph 4 of the agreement.9
9
My analysis, of course, does not extend to several circumstances not before this court. First,
I do not suggest that the proffer agreement would have prohibited the government's behavior if
Paragraph 3 merely had barred the government from using "statements" of the defendant against
her in its case-in-chief and if Paragraph 4 had allowed the government to use all "information"
provided by the defendant against her.
Second, I do not that Varona could have used her immunized statement to bar
Hechavarria's trial testimony if he was going to testify against her even absent her
statement. Cf. United States v. Wiley, 997 F.2d 378, 381-82 (8th Cir.) (holding that the
witness's testimony did not violate the proffer agreement in which the government had
agreed that any information provided by the defendant would not be used to formulate
additional criminal charges against him; noting that the witness already had given
information about the defendant before the defendant was even arrested or questioned),
cert. denied, 510 U.S. 1011, 114 S.Ct. 600, 126 L.Ed.2d 565 (1993); United States v.
Blau, 961 F.Supp. 626, 631 (S.D.N.Y.1997) (holding that the witness's testimony did not
violate statutory use and derivative use immunity, see 18 U.S.C. § 6002, where the
defendant's proffer implicating the witness did not influence witness's decision to plead
guilty and inculpate defendant).
Third, I do not suggest that the proffer agreement would have barred
Hechavarria's trial testimony if he had testified not about the same transaction described
in Varona's statement, but instead about other narcotics trafficking in which Varona may
have been engaged. Cf. United States v. Catano, 65 F.3d 219, 226 (1st Cir.1995)
(holding that the district court properly allowed the witness to testify that the defendant
stored marijuana at witness's home, where the grant of immunity concerned only the
"direct use of the [defendant's] testimony" and where the defendant had identified the
witness to the government while exposing a fentanyl operation at the witness's home). I
merely would hold that the proffer agreement barred the government from putting on
Hechavarria's testimony about the very transaction described in Varona's immunized
statement where the government indicted Hechavarria on the basis of that statement and
secured a plea agreement in which Hechavarria agreed to testify at Varona's trial.
Finally, I would hold only that the government's orchestrated strategy of securing
Hechavarria's indictment, having him plead guilty, and then introducing his testimony at
Varona's trial constituted the use of Varona's information against her. I do not suggest
that the proffer agreement would have barred Hechavarria's testimony if he had been
tried together with Varona and if he had inculpated her while testifying in his own
defense at trial. But cf. United States v. Byrd, 765 F.2d 1524, 1532 n. 11 (11th Cir.1985)
("We also strongly suggest that an immunized witness never be tried with those whom he
II.
Because in my view the government violated Varona's proffer agreement when it introduced
Hechavarria's trial testimony against her, I turn to the question of whether the government had a
legitimate and wholly independent source for Hechavarria's trial testimony.10 The grand jury named
Hechavarria in the superseding indictment based solely on the testimony of Agent Lucas, who
related the contents of the immunized statements of Varona and Jose.11 Absent Varona's immunized
statement, the government had no independent means of securing Hechavarria's indictment and thus
had no independent means of obtaining his testimony. As the government itself admits in its brief
on appeal, "It was critical for the government to use Varona's statement against Hechavarria because
without that statement there would not have been a basis for indicting him for possession."12
Moreover, Jose's debriefing statement, which also named Hechavarria, does not constitute an
independent source for Hechavarria's indictment and subsequent testimony because Varona's prior
has implicated.").
10
The government bears the affirmative burden of establishing that its evidence was not
tainted by a defendant's immunized statement; this is done "by establishing the existence of an
independent, legitimate source for the disputed evidence." United States v. Schmidgall, 25 F.3d
1523, 1528 (11th Cir.1994) (citing Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665); United States v.
Hampton, 775 F.2d 1479, 1485 (11th Cir.1985) (citing United States v. Seiffert, 501 F.2d 974,
982 (5th Cir.1974)). To establish a "wholly independent" source for its evidence, see
Schmidgall, 25 F.3d at 1528 (quoting Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665), the
government must demonstrate that each step of the investigative chain through which the
evidence was obtained was untainted, see Schmidgall, 25 F.3d at 1528 (citing Hampton, 775
F.2d 1479 at 1489).
11
See Gov. Ex. 52 at 2-7.
12
Br. of the U.S. at 19. Cf. Hampton, 775 F.2d at 1488-89 (holding that government violated
transactional immunity when it used testimony of immunized witness to build case against
co-conspirator, who consequently struck a plea bargain with prosecutors and agreed to testify
before grand jury against the immunized witness; stating that "government made absolutely no
attempt to establish that the testimony of [the co-conspirator] was obtained independently of [the
witness's] immunized testimony").
debriefing statement may have shaped Jose's questioning. See United States v. Schmidgall, 25 F.3d
1523, 1530-31 (11th Cir.1994) (holding that the government failed to carry burden of proving an
independent source of immunized statements where such statements may have been used to shape
the questioning of proffered alternative sources of information).
My analysis would be different if, prior to Varona's statement, Hechavarria had been indicted
and had pleaded guilty. Under those circumstances, the government presumably would have had
a legitimate and wholly independent source for its evidence, and Varona could not have used her
debriefing statement to protect herself from Hechavarria's trial testimony. Here, however, the
government obviously had no independent source for Hechavarria's trial testimony. I thus conclude
that the district court erred in allowing Hechavarria to testify about the same transaction described
in Varona's statement.
III.
Having determined that the admission of Hechavarria's testimony was erroneous, I address
the majority's contention that, even if Varona has demonstrated error, the error was not "plain error."
Because Varona's counsel failed to object to Hechavarria's testimony at trial, Varona must
demonstrate on appeal that: (1) the error was plain, clear, or obvious; and (2) the error affected
substantial rights, in that it was prejudicial and not harmless. See United States v. Olano, 507 U.S.
725, 732-735, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993); United States v. Foree, 43 F.3d
1572, 1577-78 (11th Cir.1995); see also Fed.R.Crim.P. 52(b).13 I believe that Varona has met both
of these requirements.
A.
13
It "is the defendant rather than the Government who bears the burden of persuasion with
respect to prejudice." Foree, 43 F.3d at 1578 (citing Olano, 507 U.S. at 734, 113 S.Ct. at 1778).
The majority asserts that "when two of the three judges who address a matter conclude that
there is no error at all, that must mean there is no plain error." I respectfully disagree. In my view,
the majority's interpretation of Varona's proffer agreement impermissibly deems two of the
agreement's provisions to be in conflict and renders meaningless the term "information" in Paragraph
3. Because I do not agree with my esteemed colleagues' interpretation of the agreement, their
conclusion does not convince me that the district court's error was any less obvious.14
Moreover, even if the majority's interpretation were a legitimate alternative to the one I posit,
that would only indicate that the agreement's language was ambiguous. The agreement's legal
significance nonetheless would be clear: the agreement barred the government from acting as it did
in this case. Where the language of an immunity agreement is ambiguous, the agreement must be
interpreted according to the defendant's reasonable understanding at the time she entered into it. See
In re Arnett, 804 F.2d 1200, 1202-03 (11th Cir.1986) (interpreting plea agreement according to
defendant's reasonable understanding at time of plea); Rowe v. Griffin, 676 F.2d 524, 528 (11th
Cir.1982) (interpreting immunity agreements pursuant to principles applied to interpretation of plea
agreements).15 Indeed, any ambiguity in the promise of immunity must be resolved in favor of the
14
Plain error review is appropriate in this case because the district court, at the time of
Hechavarria's testimony, was aware of all of the relevant circumstances, including the language
of Varona's proffer agreement, the contents of her debriefing statement, and the government's use
of her statement to indict Hechavarria. On March 13, 1995, several days before Hechavarria's
testimony on March 16, Varona's counsel presented these matters to the court in connection with
Varona's motion to dismiss the superseding indictment. See R4: 192-205.
15
Cf. United States v. $87,118.00 in U.S. Currency, 95 F.3d 511, 517 (7th Cir.1996) (stating
that, when interpreting proffer agreements, ordinary contract principles should be supplemented
with concern that the bargaining process not violate the defendant's rights to fundamental
fairness under the Due Process Clause) (citation omitted); United States v. Plummer, 941 F.2d
799, 804 (9th Cir.1991) (stating that ambiguity in an immunity agreement with two
contradictory, yet reasonable, interpretations should be "resolved against the one who drafted the
language").
defendant. Id. at 526 n. 4. I find it obvious that Varona reasonably would have believed that the
agreement barred the government from using her statement to obtain Hechavarria's testimony about
the same transaction described in her statement. She reasonably would not have assumed that
Paragraph 3's prohibition on using "information" that she provided against her was completely
trumped by Paragraph 4, which allowed the indirect pursuit of "investigatory leads" and use of
"derivative evidence."
According to the majority, the fact that Varona's counsel failed to object to Hechavarria's
testimony demonstrated that the government did not plainly violate Varona's proffer agreement.
Plain error, however, may occur even when the defense counsel fails to object to the government's
violation of an immunity agreement. See United States v. Fant, 974 F.2d 559, 564-65 (4th Cir.1992)
(vacating sentence and remanding where use of defendant's immunized statements for purposes of
sentence enhancement constituted plain error); United States v. Brimberry, 744 F.2d 580, 587 (7th
Cir.1984) (remanding for evidentiary hearing where trial court committed plain error in failing to
determine, sua sponte, whether government's prosecution violated the immunity provision of the
defendant's plea agreement). The fact that Varona's counsel was present when she signed the proffer
agreement does not render the district court's error any less plain. Cf. United States v. McQueen,
108 F.3d 64, 66 (4th Cir.1997) (vacating sentence for plain error where government, without
objection, violated terms of plea agreement during sentencing); United States v. Goldfaden, 959
F.2d 1324, 1327 (5th Cir.1992) (same).16
16
Furthermore, Varona's counsel had almost no warning concerning the content of
Hechavarria's testimony. Hechavarria signed his plea agreement with the government on March
15, 1995, the third day of the trial and only the day before he testified against Pielago and
Varona. See Plea Agreement of Carlos Hechavarria, Gov. Ex. 42, at 5. At the end of the day on
March 15, Varona's counsel told the court, "[F]rankly, I haven't the vaguest idea what this man
[Hechavarria] is going to testify to." R5: 390. The government eventually delivered to Varona's
counsel a one-page, handwritten note about the government's debriefing of Hechavarria, see R5:
B.
The final element of the plain error inquiry is whether Varona has met her burden of proving
that the error was not harmless. See Olano, 507 U.S. at 734-35, 113 S.Ct. at 1777-78. Admitting
Hechavarria's testimony against Varona was harmless error only if this court is "persuaded beyond
a reasonable doubt that the jury would have reached the same verdict even without consideration
of the tainted evidence." United States v. Nanni, 59 F.3d 1425, 1433 (2d Cir.1995), cert. denied, ---
U.S. ----, 116 S.Ct. 576, 133 L.Ed.2d 499 (1995). I believe that Varona has proven beyond dispute
that there is at least a reasonable doubt that the jury would not have convicted her absent
Hechavarria's testimony.
To convict Varona of conspiracy to possess cocaine with intent to distribute it, the jury had
to find beyond a reasonable doubt that: 1) a conspiracy existed; 2) the defendant knew of the
essential elements of the conspiracy; and 3) the defendant voluntarily and knowingly participated
in the conspiracy. United States v. Harris, 20 F.3d 445, 452 (11th Cir.), cert. denied, 513 U.S. 967,
115 S.Ct. 434, 130 L.Ed.2d 346 (1994). "At a minimum, the defendant must willfully associate
himself in some way with the criminal venture and willfully participate in it as he would in
something he wished to bring about." United States v. Newton, 44 F.3d 913, 922 (11th Cir.1994), ---
U.S. ----, 116 S.Ct. 161, 133 L.Ed.2d 104 (1995). Moreover, the defendant must have "a deliberate,
knowing, and specific intent to join the conspiracy." Harris, 20 F.3d at 452 (citation omitted).
A defendant's participation in a conspiracy "need not be proven by direct evidence. That [he]
had a common purpose and plan with the other conspirators may be inferred from a "development
391; R6: 437, and then, during the morning of March 16, the government put Hechavarria on
the stand to testify against Pielago and Varona, see R6: 445. These circumstances do not excuse
the defense counsel's failure to object to Hechavarria's testimony about Varona's delivery of
cocaine. Nonetheless, the defense counsel's error hardly demonstrates that the government "was
within its rights," as the majority suggests.
and collocation of circumstances.' " United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir.) (citation
omitted), cert. denied, --- U.S. ----, 116 S.Ct. 262, 133 L.Ed.2d 185 (1995). Where the government's
case is circumstantial, however, "reasonable inferences, and not mere speculation, must support the
jury's verdict." United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir.1994), cert. denied, 515
U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). For example, mere speculation as to the
interpretations of words used by the defendant is insufficient evidence to link the defendant to a
conspiracy. See United States v. Young, 39 F.3d 1561, 1565-66 (11th Cir.1994). Similarly, a
defendant's association with conspirators and her knowledge of the conspirators' actions are not
themselves sufficient proof of participation in a conspiracy. See United States v. Calderon, 127 F.3d
1314, 1326 (11th Cir.1997)(stating that repeated presence at scene of drug trafficking, though
probative, is not by itself sufficient evidence to support a conspiracy conviction); Lyons, 53 F.3d
at 1201 (holding that "[m]ere presence, guilty knowledge, even sympathetic observation have all
been held by this court to fall short of the proof required to support" a conviction for "conspiracy
to possess and distribute drugs"). This court repeatedly has relied upon these principles in reversing
conspiracy convictions for insufficiency of evidence.17
Even though the government introduced surveillance and wiretap evidence at trial,
Hechavarria's testimony was the only evidence indicating Varona's knowing participation in a
17
See, e.g., United States v. Thomas, 8 F.3d 1552, 1556, 1558 (11th Cir.1993) (holding that
evidence that the defendant knew of planned bank robbery did not prove that he participated in
conspiracy); United States v. Villegas, 911 F.2d 623, 631 (11th Cir.1990) (stating that the
defendant's looking left and right in the vicinity of his brother's cocaine deal was insufficient to
show participation in the conspiracy), cert. denied, 499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d
722 (1991); United States v. Hernandez, 896 F.2d 513, 519-20 (11th Cir.) (holding that the
defendant's association with the co-defendant was insufficient to prove conspiracy or possession
even though the defendant was in vehicle from which drugs were retrieved and was present when
drugs were given to an undercover agent), cert. denied, 498 U.S. 858, 111 S.Ct. 159, 112
L.Ed.2d 125 (1990).
conspiracy to possess cocaine with intent to distribute it. Prior to her husband's arrest on the evening
of November 6, 1993, only one telephone call involving Varona was intercepted; on October 20,
1993, Varona merely answered the phone and gave it to Jose.18 The government witness monitoring
Frank Novaton's phone on November 6 stated that he intercepted calls between the Varona phone
and the Novaton phone concerning an eight kilogram cocaine transaction, but he specifically stated
that none of those calls involved Varona.19 Similarly, the government presented no inculpatory
surveillance evidence gathered prior to Jose's arrest. Agent Lucas testified only that Varona and two
children arrived at the house in the evening of November 6 after Jose and Pielago had entered with
the cocaine.20 He did not suggest that Varona participated in any way in obtaining the cocaine, nor
did he testify that Varona assisted Jose and Pielago in readying the cocaine for transport.
Other evidence concerning Varona consisted of phone calls intercepted after Jose was
arrested. Viewed in the light most favorable to the government, these phone calls suggest only that
Varona knew that Jose had cocaine with him when he left the Varona residence on the evening of
November 6 and that she knew where he was going. Such evidence, standing alone, failed to
establish that Varona knowingly participated in a conspiracy. See Lyons, 53 F.3d at 1201. Notably,
18
R4: 31 (testimony of Detective Morejon). Another government witness testified that part of
a telephone call intercepted on November 6, 1993, involved Hechavarria and Varona talking
about "telemedia cable." R4: 128-29 (testimony of Detective Diaz). The witness specifically
stated that he was not suggesting that the discussion of cable television was a coded conversation
about cocaine. R4: 129. Varona's voice also was heard in the background during an intercepted
phone call between Jose and Hechavarria on November 6, 1993. She apparently was shouting at
her children. R4: 104-05 (testimony of Detective Marrero); Gov. Ex. 11B.
19
R5: 318-21 (testimony of Sergeant Martinez).
20
R4: 170 (testimony of Agent Lucas). The evidence did not demonstrate that Varona
actually met with Jose and Pielago, but rather only that she arrived at the house while they were
there. R5: 246 (testimony of Agent Lucas).
no evidence indicated that an extra kilogram of cocaine21 remained in the Varona residence after
Jose and Pielago left, much less that Varona knew about the kilogram or gave the kilogram to
anyone.
Only by introducing Hechavarria's testimony about Varona's delivery of cocaine did the
government present sufficient evidence to convince a jury beyond a reasonable doubt that Varona
knowingly participated in a conspiracy to possess cocaine with intent to distribute it. Hechavarria
testified that Varona called him after her husband's arrest and asked him to go by her house; when
he arrived, Varona gave him a gray tool box that contained a kilogram of cocaine.22 Hechavarria's
testimony was not refuted, nor was it effectively challenged on cross-examination.
Apart from Hechavarria's testimony about Varona's delivery of cocaine, the government did
not even present a prima facie case of conspiracy against Varona. Under the plain error rule, Varona
has met her burden of proving that there is at least a reasonable doubt that the jury would not have
convicted her absent Hechavarria's testimony about the transaction. See Olano, 507 U.S. at 734-35,
113 S.Ct. at 1777-78; see also Nanni, 59 F.3d at 1433.23
21
Absent Hechavarria's testimony, the trial evidence does not even demonstrate that an extra
kilogram of cocaine existed. The crucial government witness on this issue contradicted himself
regarding whether Jose had obtained eight or nine kilograms of cocaine prior to his arrest with
eight kilograms. Compare R5: 318-21 (testimony of Sergeant Martinez) (stating that
intercepted phone calls between the Varona phone and the Novaton phone on November 6
established that there was activity in relation to the delivery of eight kilograms of cocaine) with
R5: 329 (testimony of Sergeant Martinez) (stating that he "knew from what was going on during
the investigation" that Jose had picked up nine kilograms of cocaine).
22
R6: 456-57.
23
Even with Hechavarria's testimony, the jury had a difficult time reaching a guilty verdict
against Varona. After one day of deliberations, the jury reached a verdict regarding Pielago, but
it advised the court that it was unable to reach a verdict as to Varona. The district judge then
gave the jury a modified Allen charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41
L.Ed. 528 (1896). Following an additional day of deliberations, the jury submitted a note
announcing that it was hopelessly deadlocked as to Varona. Upon being summoned to announce
IV.
Even in a case involving plain error, "the Courts of Appeals should correct such error[ ] only
when [it] "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' "
United States v. Foree, 43 F.3d 1572, 1578 (11th Cir.1995) (citing United States v. Olano, 507 U.S.
725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993) (quoting United States v. Atkinson, 297
U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936))). I believe that the government's violation
of Varona's proffer agreement is sufficiently troubling to merit correction on appeal.
First, strict enforcement of immunity agreements protects central values of the judicial
system, namely defendants' right to due process and their right against self-incrimination. See
United States v. Harvey, 869 F.2d 1439, 1444 (11th Cir.1989) ("Due process requires the
government to adhere to the terms of any plea bargain or immunity agreement it makes."); Rowe
v. Griffin, 676 F.2d 524, 528 (11th Cir.1982) ("When such a promise [of immunity] induces a
defendant to waive his fifth amendment rights by testifying at the trial of his confederates or to
otherwise cooperate with the government to his detriment, due process requires that the prosecutor's
promise be fulfilled."); United States v. Weiss, 599 F.2d 730, 737 (5th Cir.1979) ("To protect the
voluntariness of a waiver of fifth amendment rights, where a plea, confession, or admission is based
on a promise of a plea bargain or immunity, the government must keep its promise."); cf. United
States v. $87,118.00 in U.S. Currency, 95 F.3d 511, 517 (7th Cir.1996) (stating that immunity
provisions of proffer agreements must be interpreted to ensure "that the bargaining process not
violate the defendant's rights to fundamental fairness under the Due Process Clause") (quotation
its verdict as to Pielago, however, the jury found Varona guilty of conspiracy. Although this
sequence of events does not reveal the precise nature of the jury's deliberations on the conspiracy
charge, courts in other cases have reasoned that an error was less likely to have been harmless
where an Allen charge was necessary. See, e.g., United States v. Shavers, 615 F.2d 266, 269 (5th
Cir.1980); Mason v. Scully, 16 F.3d 38, 45 (2d Cir.1994).
omitted). Second, allowing the government to violate immunity agreements without any
consequence seriously undermines the public reputation of the fairness of the judicial system. Third,
failure to enforce the terms of immunity agreements renders such agreements significantly less
attractive to witnesses and thus weakens an important law enforcement tool.
As the majority notes, the plain error rule is a narrow exception to the contemporaneous
objection rule. Nonetheless, plain error review must be available to remedy palpable injustice. The
Supreme Court has explained that Fed.R.Crim.P. 52(b), the plain error rule,
was intended to afford a means for the prompt redress of miscarriages of justice.... The Rule
thus reflects a careful balancing of our need to encourage all trial participants to seek a fair
and accurate trial the first time around against our insistence that obvious injustice be
promptly addressed.
United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). In my
view, convicting Varona solely on the basis of evidence obtained in violation of her proffer
agreement is just the sort of injustice for which plain error review is appropriate.
Moreover, I disagree with the majority's implication that reversal for plain error is limited
to cases involving an intervening change in law or a violation of specific procedural rules, such as
Fed.R.Crim.P. 11. In one of the very cases cited by the majority, this court reversed the defendant's
conviction solely on the grounds that certain testimony, to which the defense failed to object, was
unduly prejudicial. See United States v. Sorondo, 845 F.2d 945 (11th Cir.1988) (reversing
conviction because admission of DEA agent's testimony about informant's record in assisting other
successful prosecutions was plain error). Indeed, this court has ruled that a variety of different types
of error are plain error requiring reversal.24 The prosecution's prejudicial violation of an immunity
24
See, e.g., United States v. Banks, 942 F.2d 1576, 1579-81 (11th Cir.1991) (reversing for
plain error where jury instruction was inadequate to permit jury to give proper consideration to
proffered defense); United States v. Singleterry, 646 F.2d 1014, 1018-19 (5th Cir. Unit A June
1981) (reversing for plain error where prosecutor asked defendant whether he associated with
agreement can be reversible plain error, as well. Cf. United States v. Fant, 974 F.2d 559, 564-65
(4th Cir.1992) (vacating sentence and remanding where use of defendant's immunized statements
for purposes of sentence enhancement constituted plain error); United States v. Brimberry, 744 F.2d
580, 587 (7th Cir.1984) (remanding for evidentiary hearing where trial court committed plain error
in failing to determine, sua sponte, whether government's prosecution violated the immunity
provision of the defendant's plea agreement).
In light of the overwhelming importance of Hechavarria's testimony to the government's case
against Varona, I find the majority's invocation of the "sandbagging" threat to be unpersuasive.
Varona's counsel had nothing whatsoever to gain by failing to object to Hechavarria's testimony at
trial, but if he had objected and the objection had been sustained, the government's case against
Varona almost certainly would have failed. This case, therefore, hardly is one in which a defense
lawyer "intentionally decline[d] to object to a potentially unconstitutional trial procedure in order
to inject reversible error into the proceeding." United States v. Joshi, 896 F.2d 1303, 1307 n. 3 (11th
Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990).
In my view, the record unequivocally indicates that Hechavarria's testimony was obtained
in violation of Varona's proffer agreement. The record also indicates that the government had no
legitimate and wholly independent source for Hechavarria's testimony and that no reasonable jury
could have convicted Varona absent his testimony. I therefore would reverse Varona's conviction
convicted felons); United States v. Darland, 626 F.2d 1235, 1237-38 (5th Cir.1980) (reversing
for plain error where judge excluded evidence concerning defendant's reputation for honesty,
integrity, and peacefulness); United States v. Thompson, 615 F.2d 329, 332-333 (5th Cir.1980)
(reversing for plain error where judge dismissed government witness and instructed jury to
disregard her surprise adverse testimony); United States v. Garza, 608 F.2d 659, 663-66 (5th
Cir.1979)(reversing for plain error where prosecutor vouched for government witnesses and
stated that government had no interest in convicting the wrong person).
and remand her case for a new trial.25
Accordingly, although I CONCUR with Parts IV.A and IV.C of the majority opinion, I
respectfully DISSENT as to Part IV.B.
25
Under these circumstances, I see no need for the district court to conduct either an
evidentiary hearing pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32
L.Ed.2d 212 (1972), or a harmless error inquiry. See United States v. Schmidgall, 25 F.3d 1523,
1531 n. 10 (11th Cir.1994) (reviewing cases involving use of immunized testimony and
concluding that "[i]n every case ordering outright reversal, the opinion indicated that there was a
clear use of immunized testimony and that further proceedings would be futile").