United States v. Gonzales

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-20637
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENRIQUE GONZALES, JR.; ENRIQUE GONZALES, SR.;
and WILSON OLIVARES, a/k/a Olivares Wilson,
Defendants-Appellants.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
_______________
No. 96-20954
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENRIQUE GONZALES, JR.,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
August 26, 1997
Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Enrique Gonzales, Sr., Enrique Gonzales, Jr., and Wilson
Olivares challenge their convictions of participation in a drug
trafficking conspiracy. We affirm.
I.
A.
A drug trafficking task force, including officers of the
Department of Public Safety, the Bureau of Alcohol, Tobacco and
Firearms (“ATF”), and the Houston Police Department learned of a
potential drug dealer from a confidential informant, Jose
Benvides, who advised officers that a man named “Doni” had offered
to sell him a large quantity of cocaine. Relying on this informa-
tion, the task force planned a sting. Benvides was instructed to
arrange the transaction, advising Doni that his “cousin” wished to
purchase a large quantity of cocaine. An undercover officer, Oscar
Garcia, posed as Benvides's cousin. Benvides and Doni agreed that
Garcia would purchase two kilograms of cocaine from Doni for
$44,000, and Doni instructed Benvides and Garcia to meet him at a
bar to execute the transaction.
After Benvides and Garcia arrived at the designated location,
Doni introduced himself to Garcia and asked to see the money.
Garcia displayed $42,000 in “show money” that he had obtained for
the sting. After satisfying himself that the money was sufficient,
2
Doni placed a phone call to his associates and confirmed the deal.
Doni's associates returned the call approximately one hour later,
and Doni directed Garcia to the location of the final transaction.
Garcia convinced Doni to ride with Benvides, then notified the task
force of their destination.
When the three men arrived at their destination, a warehouse,
Benvides was taken inside to verify that the cocaine was present.
Meanwhile, Garcia remained outside and met the surveillance team,
arranging a final “bust signal” and handing off the “show money.”
Shortly thereafter, Benvides called to confirm the presence of the
cocaine, and Garcia approached the warehouse.
Before Garcia could enter, Doni asked to see the money again.
Having already handed off the money, Garcia stalled and demanded to
see the drugs first. Doni was adamant, however, and eventually
Garcia instructed Benvides to retrieve the money from his car,
knowing Benvides would find nothing. The situation grew volatile.
During this exchange, Doni realized that Garcia was carrying a
pistol and became highly agitated, despite Garcia's reassurances.
Finally, when Doni realized that Benvides could not find the money,
he began to retreat into the warehouse. Garcia followed Doni,
giving the “bust signal” as he approached the warehouse door.
As Garcia entered the warehouse, he observed Doni gesturing to
someone inside, and he saw Olivares standing beside a pool table.
Olivares immediately reached down beside the pool table and Garcia,
fearful that Olivares was reaching for a weapon, drew his revolver,
and identified himself as a police officer. Olivares did draw a
3
weapon, but replaced it inside the table when confronted by Garcia.
Simultaneously, the surveillance team entered the warehouse
and secured the premises, handcuffing everyone inside. While
securing the premises, one member of the surveillance team, Officer
Hans Meisel, discovered a loaded machinegun jutting out from a
missing panel in the pool table.1
The officers learned that Olivares was living in the warehouse
and requested permission to search. Olivares signed a consent
form, and the officers proceeded to search the warehouse for the
drugs. Benvides explained that Gonzales, Sr., had escorted him
upstairs to view the cocaine, and he directed the officers to the
location. The drugs had been moved, however, and a narcotics
detection dog was called in to locate the drugs, which were found
inside a brown paper bag that had been placed inside a bag of
concrete. Fingerprint testing subsequently revealed that a palm
print on the brown paper bag matched those of Gonzales, Jr. The
officers confiscated 1,998.4 grams of cocaine.
As Meisel was leaving with the cocaine, Gonzales, Jr., mocked
him, saying “we made you work for that s---, you all thought you
weren't going to find it,” and claiming “all of that is mine.” In
response to a query by Meisel, Gonzales, Jr., explained that he was
referring to “the coke and the gun.”
1
An ATF expert testified that the rifle was initially manufactured between
1980 and 1982 as a semi-automatic weapon but had been modified to perform as a
machinegun. Furthermore, the home-made machinegun was not registered in the
National Firearms Registration and Transfer Records.
4
B.
The appellants indicted on charges of possession with intent
to distribute in excess of 500 grams of cocaine, in violation of
21 U.S.C. §§ 841(1)(1) and 841(b)(1)(B); conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846;
using and carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c); and unlawful
possession of a machinegun, in violation of 18 U.S.C. § 922(o).
They filed motions to suppress the cocaine, and Gonzales, Jr.,
moved to suppress his incriminating statements. At the suppression
hearing, Meisel testified that Gonzales, Jr., had made his
incriminating statements voluntarily and without interrogation, and
Garcia corroborated Meisel's account. The district court denied
the motions to suppress.
The jury convicted on all counts. The district court denied
motions for judgments of acquittal. The government gave notice
that it intended to seek the thirty-year sentence enhancement for
using and carrying a machinegun during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c). The
defendants objected, claiming that this aggravating factor had not
been included in the indictment and could not be considered in the
sentencing decision. The defendants claimed they were informed at
arraignment that the maximum penalty under § 924(c) was five years
in prison, thus the sentence enhancement would offend due process.
The district court overruled the objections and adopted the
presentence reports, sentencing each defendant to 78 months on
5
counts one, two, and four, to be served concurrently, and
360 months on count three, to be served consecutively, for a total
sentence of 438 months' imprisonment.
II.
Defendants argue that the evidence was insufficient to support
their convictions for conspiracy, possession with intent to
distribute, and the firearms offenses. We disagree.
A.
In a sufficiency challenge, we view the evidence in the light
most favorable to the verdict and afford the government the benefit
of all reasonable inferences. See United States v. Dean, 59 F.3d
1479, 1484 (5th Cir. 1995), cert. denied, 116 S. Ct. 794 (1996).
The verdict must be affirmed if a rational trier of fact could have
found the essential elements of the offense beyond a reasonable
doubt. See United States v. Walters, 87 F.3d 663, 667 (5th Cir.),
cert. denied, 117 S. Ct. 498 (1996); Dean, 59 F.3d at 1484.
B.
Olivares argues that the evidence was insufficient to prove
that he participated in the conspiracy to distribute cocaine, nor
did it prove that he aided and abetted the substantive offense of
possession with intent to distribute cocaine. We disagree.
6
1.
In order to sustain a conviction for conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C. § 846,
the government must prove three essential elements: (1) that an
agreement existed to violate federal narcotics laws; (2) that the
defendant knew of the existence of the agreement; and (3) that the
defendant voluntarily participated in the conspiracy. See United
States v. Garcia, 86 F.3d 394, 398 (5th Cir. 1996), cert. denied,
117 S. Ct. 752 (1997); United States v. Cardenas, 9 F.3d 1139, 1157
(5th Cir. 1993); United States v. Maltos, 985 F.2d 743, 746 (5th
Cir. 1992).
The essential elements of conspiracy may be established by
circumstantial evidence. See United States v. Casilla, 20 F.3d
600, 603 (5th Cir. 1994); Cardenas, 9 F.3d at 1157. “The govern-
ment need not prove the essential elements by direct evidence
alone. The agreement, a defendant’s guilty knowledge and a
defendant’s participation in the conspiracy all may be inferred
from the 'development and collocation of circumstances.'” Maltos,
985 F.2d at 746 (citations omitted); Ayala, 887 F.2d at 67.
Therefore, we have consistently held that the jury may infer the
existence of a conspiracy from the presence, association, and
concerted action of the defendant with others. See Cardenas, 9
F.3d at 1157; Ayala, 887 F.2d at 67.
Nevertheless, Olivares claims that the evidence established
only his “mere presence” at the crime scene, not his participation
in the narcotics conspiracy. This argument is unavailing.
7
Granted, “it is well established that mere presence at the
crime scene or close association with conspirators, standing alone,
will not support an inference of participation in the conspiracy.”
Maltos, 985 F.2d at 746 (emphasis added). It is equally settled,
however, that “presence or association is a factor that, along with
other evidence, may be relied upon to find conspiratorial activity
by the defendant.” Cardenas, 9 F.3d at 1157 (emphasis added).2
Olivares's presence at the crime scene, corroborated by physical
evidence discovered there and the testimony of the arresting
officers, was sufficient to support the inference that he was a
member of the conspiracy.
Garcia testified that when he entered the warehouse, he
observed Doni make a hand gesture to someone inside. Moreover,
immediately upon entering the warehouse, Garcia observed Olivares
reaching down beside the pool table as if reaching for a weapon.
In response, Garcia identified himself and drew his own revolver,
at which time Olivares replaced his weapon inside the pool table.
Finally, Meisel testified that he discovered a machinegun jutting
out from a missing panel in the pool table. This evidence supports
an inference that Olivares was a member of the conspiracy,
responding to the hand signals of a co-conspirator in an attempt to
protect the conspiracy by force. Given this testimony, the jury
reasonably could conclude that “this was a case of culpable
presence as opposed to mere presence.” United States v. Echeverri,
982 F.2d 675, 678 (1st Cir. 1993).
2
Accord Casilla, 20 F.3d at 603; Maltos, 985 F.2d at 746.
8
2.
Likewise, a defendant may be convicted of aiding and abetting
a criminal offense when he associates with the criminal activity,
participates in it, and acts to help it succeed. See United States
v. Pedroza, 78 F.3d 179, 183-84 (5th Cir. 1996); United States v.
Vaden, 912 F.2d 780, 783 (5th Cir. 1990); see also 18 U.S.C. § 2(prohibiting aiding and abetting a criminal offense). A defendant
may be convicted of aiding and abetting the offense of possession
with intent to distribute a controlled substance even if he did not
have actual or constructive possession of the substance. United
States v. Pena, 949 F.2d 751, 755 (5th Cir. 1991).
In order to sustain a conviction for possession with intent to
distribute under 21 U.S.C. § 841(a)(1), the government must prove
three essential elements: (1) knowing (2) possession of a con-
trolled substance (3) with intent to distribute it. See United
States v. Brown, 29 F.3d 953, 958 (5th Cir. 1994). The elements of
possession with intent to distribute may be established by
circumstantial evidence. Cardenas, 9 F.3d at 1158; Ayala, 887 F.2d
at 68. Furthermore, intent to distribute may be inferred from a
large quantity of illegal narcotics and the value and quality of
the drugs. Casilla, 20 F.3d at 603; Cardenas, 9 F.3d at 1158;
Ayala, 887 F.2d at 68. In the instant case, it is undisputed that
the defendants knowingly possessed the cocaine with the intent to
distribute it. Therefore, the elements of the predicate possession
offense are established.
Likewise, the evidence was sufficient to prove that Olivares
9
aided and abetted the possession offense. The evidence supporting
a conspiracy conviction is generally sufficient to support an
aiding and abetting conviction as well. Casilla, 20 F.3d at 603;
United States v. Salazar, 958 F.2d 1285, 1292 (5th Cir. 1992).
The instant case is no exception. Olivares attempted to draw a
machinegun to protect the conspiracy, which certainly constitutes
an affirmative act designed to help the criminal activity succeed.
See, e.g., United States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995);
United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.), cert.
denied, 514 U.S. 1134 (1995). Viewing the evidence in the light
most favorable to the verdict, the jury was entitled to conclude
that Olivares had aided and abetted the possession offense.
C.
Gonzales, Jr., argues that the evidence was insufficient to
support his convictions for unlawful possession of a machinegun and
aiding and abetting the use of a firearm during and in relation to
a drug trafficking crime. We disagree.
1.
Gonzales, Jr., claims that the evidence was insufficient to
support his conviction for unlawful possession of a machinegun, in
violation of 18 U.S.C. § 922(o), because the government failed to
prove beyond a reasonable doubt that Gonzales did not possess the
10
machinegun prior to May 19, 1986. His claim is meritless.3
The statute provides that it shall be unlawful for any person
to transfer or possess a machinegun, but there is an exception for
“any lawful transfer or lawful possession of a machinegun that was
lawfully possessed before the date this subsection takes effect.”
18 U.S.C. § 922(o)(2)(B). Gonzales, Jr., argues that the statute
requires the government to demonstrate, beyond a reasonable doubt,
that the defendant did not lawfully possess the machinegun before
the effective date of the statute. We disagree.
The Due Process Clause requires the government to prove only
the essential elements of the offense beyond a reasonable doubt.
See In re Winship, 397 U.S. 358, 361-64 (1970). The exception for
lawfully possessed machineguns is an affirmative defense, however,
not an element of the offense. Therefore, the government is under
no duty to disprove this affirmative defense; on the contrary, the
burden was on Gonzales, Jr., to establish this affirmative defense.
See United States v. Just, 74 F.3d 902, 904 (8th Cir. 1996).4
Having failed to prove that he lawfully possessed the machinegun
prior to May 19, 1986, Gonzales, Jr., has failed to establish his
affirmative defense, and the government is under no obligation to
prove the negative.
3
Gonzales, Sr., raises the same argument.
4
See also United States v. Green, 962 F.2d 938, 941 (9th Cir. 1992)
(noting that “a defendant who relies on an exception to a statute made by a
proviso or distinct clause, whether in the same section of the statute or
elsewhere, has the burden of establishing and showing that he comes within the
exception”) (quoting United States v. Guess, 629 F.2d 573, 576 (9th Cir. 1980)).
11
2.
Gonzales, Jr., next argues that the evidence was insufficient
to support the machinegun conviction because the government did not
prove that Gonzales knew the weapon had been modified to fire as an
automatic weapon. To obtain a conviction under 18 U.S.C. § 922(o),
the government must prove that the defendant knew the firearm was
a machinegun. See Staples v. United States, 114 S. Ct. 1793, 1804
(1994); United States v. Brantley, 68 F.3d 1283, 1289 (5th Cir.
1995), cert. denied, 116 S. Ct. 964 (1996), and cert. denied,
116 S. Ct. 1334 (1996).
The jury reasonably could infer that the firearm intentionally
had been converted into an automatic weapon and that Gonzales, Jr.,
was aware of the modification. Indeed, Gonzales, Jr., brashly
claimed to be the owner of the machinegun. It defies credibility
to suggest that the owner of a machinegunSSalbeit a modified semi-
automatic rifle converted into a machinegunSSdid not realize that
the rifle was an automatic weapon.
3.
Gonzales, Jr., next claims that the evidence was insufficient
to prove that he aided and abetted the use of a firearm during and
in relation to a drug trafficking crime. Gonzales bootstraps
himself to the argument raised by Olivares, claiming that the
evidence was insufficient to prove that Olivares was a voluntary
participant in the drug trafficking conspiracy. Ipso facto,
although Olivares “used” the machinegun by brandishing it when
12
Garcia entered the warehouse, Gonzales argues that this use of the
machinegun was not an act “in relation to” the conspiracy, because
Olivares was not a member of the conspiracy. We disagree.
Given that the evidence was sufficient to demonstrate that
Olivares was a member of the conspiracy, this claim must also fail.
Olivares plainly brandished the weapon to protect the conspiracy,
and this act obviously “facilitates or furthers the drug crime.”
Smith v. United States, 508 U.S. 223, 232 (1993).
D.
Gonzales, Sr., argues that the evidence was insufficient to
support his convictions for aiding and abetting the possession of
a machinegun and aiding and abetting the use of a firearm during
and in relation to a drug trafficking crime. On both issues,
Gonzales claims that the government failed to produce even a shred
of evidence suggesting that he either knew of or used the firearms,
precluding his conviction as an aider and abettor.
We need not rely upon aider and abettor liability, however,
because Gonzales, Sr., is also liable for the foreseeable acts of
his co-conspirators, in accordance with the Pinkerton doctrine.
Under the rule of Pinkerton v. United States, 328 U.S. 640 (1946),
“a party to a conspiracy may be held responsible for a substantive
offense committed by a coconspirator in furtherance of a conspiracy
even if the party does not participate in or have any knowledge of
the substantive offense.” United States v. Jensen, 41 F.3d 946,
955-56 (5th Cir. 1994) (citations omitted); Dean, 59 F.3d at 1489.
13
Accordingly, a defendant may be convicted under § 924(c) based on
a co-conspirator's possession of a weapon during a drug trafficking
crime, even if the defendant was unaware of the firearm possession.
Dean, 59 F.3d at 1489; accord United States v. Mendoza-Burciaga,
981 F.2d 192, 198 (5th Cir. 1992). Based on the same principle,
the Pinkerton doctrine also imposes vicarious criminal liability on
defendants for co-conspirators' violations of § 922(o).
There is no question that Gonzales, Sr., was a “father figure”
in the drug trafficking conspiracy. Benvides stated that when he
entered the warehouse to inspect the cocaine, Gonzales, Sr.,
escorted him upstairs and showed him the cocaine. Based on this
damning testimony and the circumstantial evidence, the jury
reasonably could conclude that Gonzales, Sr., was a member of the
drug conspiracy. Accordingly, under the Pinkerton doctrine,
Gonzales, Sr., is vicariously responsible for the use of a firearm
during and in relation to a drug trafficking crime and for the
possession of an unlawful machinegun.
III.
Defendants filed motions to suppress in the district court,
and all three motions were denied following a suppression hearing.
Gonzales, Sr., and Olivares argue that the warehouse was searched
without a warrant or effective consent, and Gonzales, Jr., claims
that the incriminating statements he made incident to arrest were
the fruits of an unconstitutional custodial interrogation. Both
claims are meritless.
14
A.
We review findings of fact rendered in a suppression hearing
only for clear error, but conclusions of law are reviewed de novo.
See United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993).
In reviewing a ruling on a motion to suppress, we view the evidence
in the light most favorable to the party that prevailed in the
district court, considering the evidence offered at the suppression
hearing as well as the evidence admitted at trial. Id.B.
A search conducted without a warrant is unreasonable per se
and therefore unconstitutional under the Fourth Amendment, unless
it is conducted pursuant to consent or under exigent circumstances.
See United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).
The Supreme Court has long held that “one of the specifically
established exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to consent.”
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
In order to satisfy the consent exception, the government must
establish that consent to search was freely and voluntarily given
and that the individual who gave consent had authority to do so.
See United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995).
The government must prove by a preponderance of the evidence that
consent was voluntary and effective. See United States v. Hurtado,
905 F.2d 74, 75 (5th Cir. 1990).
Gonzales, Sr., and Olivares argue that the search of the
15
warehouse was unconstitutional for two reasons: first, Olivares did
not have authority to consent to the search; and second, Olivares'
consent was not voluntary. We disagree.
1.
When the government seeks to justify a warrantless search on
the theory that consent was lawfully obtained from a third party,
rather than from the person whose property was searched or seized,
the government bears the burden of proving that the third party
had either actual or apparent authority to consent. To establish
that a third party had actual authority to consent, the government
must demonstrate “mutual use of the property by persons generally
having joint access or control for most purposes.” United States
v. Matlock, 415 U.S. 164, 171 n.7 (1974). To establish that a
third party had apparent authority to consent, however, the
government need demonstrate only that the officers reasonably
believed that the third party was authorized to consent. See
Illinois v. Rodriguez, 497 U.S. 177, 188 (1990).
At the suppression hearing, Meisel testified that the
surveillance team entered the warehouse and secured the premises,
then immediately asked to speak to the owner of the warehouse.
When the defendants explained that the owner was not present, the
officers asked whether anyone was in the “care, custody and
control” of the warehouse. Olivares volunteered, explaining that
he lived on the premises and was in control of the warehouse.
Accordingly, Meisel requested consent to search, and Olivares
16
signed a consent form authorizing the officers to search the
warehouse.
The owner of the warehouse, Jesse Garcia, testified at the
suppression hearing and confirmed that Olivares had been living in
the warehouse for about two or three months prior to the arrest.
Garcia also testified that Olivares was employed at the warehouse
and enjoyed complete access to the warehouse. Accordingly, the
government contends that Olivares possessed both actual and
apparent authority to consent to the search.
Viewing the evidence introduced at the suppression hearing in
the light most favorable to the government, the record supports the
conclusion that Olivares possessed “joint access or control” of the
warehouse, by virtue of the authority delegated to him by Garcia,
and thus had actual authority to consent to the search. At a
minimum, however, Olivares had apparent authority, as the officers
reasonably believed that he had authority. Police officers are
entitled to rely on the representations of persons regarding their
authority to consent when the circumstances do not render such
reliance unreasonable. See Rodriguez, 497 U.S. at 188.5
2.
Olivares contends that his consent was involuntary. The
5
Olivares testified that he actually lived in a small brown house adjacent
to the warehouse, rather than in the warehouse itself. This claim is irrelevant.
First, Jesse Garcia testified that Olivares occasionally lived in the warehouse,
worked in it, and enjoyed unlimited access to it. More importantly, Olivares
represented himself as a resident of the warehouse and claimed that he possessed
“care, custody and control” over it.
17
ultimate determination whether consent was voluntary is a question
of fact to be determined from the totality of the circumstances; no
single factor is dispositive. Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973). The evidence introduced at the suppression
hearing, when viewed in the light most favorable to the government,
adequately demonstrates that the officers did not coerce Olivares
into giving his consent.
C.
Gonzales, Jr., argues that the district court erred in failing
to suppress the incriminating statements he made during the arrest,
claiming that they were the product of a custodial interrogation.
We disagree.
As Meisel was leaving with the cocaine, Gonzales, Jr.,
voluntarily said, “we made you work for that s---, you all thought
you weren't going to find it,” and claimed “all of that is mine.”
Gonzales concedes that this statement was voluntary, and he does
not contest its admissibility. In response to a question by
Meisel, however, Gonzales further explained that he had been
referring to “the coke and the gun.” Because this incriminating
statement was offered in response to a question by a police officer
without the benefit of Miranda warnings, Gonzales claims it was
inadmissible.
It is axiomatic that “the Fifth Amendment privilege against
self-incrimination prohibits admitting statements given by a
suspect during 'custodial interrogation' without a prior warning.”
18
Illinois v. Perkins, 496 U.S. 292, 296 (1990). The Supreme Court
has defined “custodial interrogation” as “'questioning initiated by
law enforcement officers after a person has been taken into custody
. . . .'” Id. (quoting Miranda v. Arizona, 384 U.S. 436, 444
(1966) (emphasis added)). Gonzales, Jr., was in custody when he
made the incriminating statements concerning the cocaine and the
firearm,6 but his comments were not a response to “questioning
initiated by law enforcement officers.” To the contrary, Gonzales
voluntarily initiated the colloquy, eliciting a response from
Meisel. Accordingly, Meisel's request for clarification was not a
“custodial interrogation” for purposes of the Miranda doctrine.
Meisel did not coerce Gonzales into his confession; instead,
Gonzales freely and voluntarily boasted about his crimes, and
Meisel simply requested that Gonzales clarify his statement. This
spontaneous colloquy does not constitute an “interrogation.”
“'Interrogation,' as conceptualized in Miranda, must reflect a
measure of compulsion above and beyond that inherent in custody
itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). No such
coercion is evident in the instant case. To the contrary, Gonzales
spontaneously initiated the dialogue with Meisel, thereby waiving
his right to remain silent.7
6
A suspect is “in custody” for purposes of Miranda when he is placed under
formal arrest or when a reasonable person in the position of the suspect would
understand the situation to constitute a restraint on freedom of movement to the
degree that the law associates with formal arrest. United States v. Galberth,
846 F.2d 983, 986 n.1 (5th Cir. 1988); United States v. Bengivenga, 845 F.2d 593,
596 (5th Cir. 1988) (en banc).
7
The term “interrogation” refers to “[a] practice that the police should
(continued...)
19
Consequently, when a suspect spontaneously makes a statement,
officers may request clarification of ambiguous statements without
running afoul of the Fifth Amendment. Under similar circumstances,
the Seventh Circuit has held that such requests for clarification
of enigmatic statements are not prohibited by Miranda. See
Andersen v. Thieret, 903 F.2d 526, 532 (7th Cir. 1990). Likewise,
in the instant case, “[t]he police officer's question was a neutral
response, intended to clarify [Gonzales's] puzzling declaration;
it was not coercive interrogation that Miranda seeks to prevent.”
Id. at 532. Meisel did not “interrogate” Gonzales, Jr., and did
not violate the Fifth Amendment.
Under these circumstances, the Miranda doctrine is inapposite.
“Fidelity to the doctrine announced in Miranda requires that it be
enforced strictly, but only in those types of situations in which
the concerns that powered the decision are implicated.” Berkemer
v. McCarty, 468 U.S. 420, 437 (1984). This is not such a case, and
the district court did not err in denying the motion to suppress.
IV.
The defendants claim that the prohibition against possession
of an unlawful machinegun, 18 U.S.C. § 922(o), is unconstitutional
under United States v. Lopez, 514 U.S. 549 (1995). To the
(...continued)
know is reasonably likely to evoke an incriminating response from a suspect.”
Innis, 446 U.S. at 301; Gladden v. Roach, 864 F.2d 1196, 1198 (5th Cir. 1989).
Meisel took no affirmative steps to “evoke an incriminating response,” but merely
asked the suspect to clarify his spontaneous incriminating statement. This
request for clarification does not rise to the level of an “interrogation” for
purposes of the Miranda doctrine.
20
contrary, we recently held that § 922(o) is constitutional. See
United States v. Knutson, 113 F.3d 27 (5th Cir. 1997).
V.
Gonzales, Jr., and Gonzales, Sr., urge us to hold that their
indictments were fatally defective because they did not expressly
charge the defendants with using a machinegun during and in
relation to a drug trafficking crime. See 18 U.S.C. § 924(c).8
Because the defendants were not charged with using a machinegun,
they entreat this court to vacate their thirty-year sentences for
using a machinegun in violation of § 924(c). In a similar vein,
Olivares claims the arraignment proceedings were unconstitutional
because he was not afforded fair notice of the charges against him.
Therefore, Olivares also urges us to vacate his sentence. We
decline these invitations.
A.
An indictment is constitutionally sufficient if it enumerates
each element of the offense, notifies the defendant of the charges,
and provides him with a double jeopardy defense against future
prosecutions. See Hamling v. United States, 418 U.S. 87, 117
(1974); United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993).
The defendants claim that the indictment did not enumerate every
8
Section 924(c)(1) provides that any person who uses or carries a firearm
during or in relation to a drug trafficking crime shall be imprisoned for five
years, in addition to the punishment provided for the drug trafficking offense.
If the firearm is a machinegun, however, the defendant shall be sentenced to an
additional 30 years' imprisonment. See 18 U.S.C. § 924(c)(1).
21
element of the offense as required by Hamling, because it did not
expressly charge them with using a machinegun. We recently held
that the thirty-year sentence for machinegun use is a sentence
enhancement, however, rather than a separate offense. See United
States v. Branch, 91 F.3d 699, 738-40 (5th Cir. 1996), cert.
denied, 117 S. Ct. 1466-67 (1997). Accordingly, it need not be
charged in the indictment in order to be constitutional. Id.
at 740.
In addition, the defendants argue that they were deprived of
fair notice of the charges against them, in violation of Hamling,
because they were not expressly charged with using a machinegun.
This claim is also meritless. An indictment provides fair notice
if it states the specific facts and circumstances surrounding the
offense in sufficient detail to inform a defendant of the charges.
See Hamling, 418 U.S. at 117-18; Nevers, 7 F.3d at 63. Moreover,
we will not invalidate an indictment for purely technical errors,
but only for errors that mislead the defendant to his prejudice.
See Nevers, 7 F.3d at 63.
The defendants were fully apprised that they had been charged
with using a firearm during and in relation to a drug trafficking
crime, in violation of § 924(c). Insofar as the indictment
included all the elements of the offense, it adequately notified
the defendants of the charges against them. Indeed, insofar as
they were charged under § 924(c)(1), they may be charged with
knowledge of the machinegun enhancement, which is expressly
mandated by the plain language of the statute. While a statutory
22
citation in the indictment cannot substitute for a statement of the
elements of the offense, it may reinforce other references in the
indictment to establish notice of the charges. United States v.
Campos-Asencio, 822 F.2d 506, 508 (5th Cir. 1987).
Finally, the defendants simultaneously were charged with
possession of an unlawful machinegun in violation of § 922(o).
Therefore, they cannot credibly claim that they were surprised by
the invocation of the machinegun sentence enhancement after trial,
and they have suffered no prejudice.
B.
Olivares contends that the failure to charge the defendants
with using a machinegun rendered the arraignment unconstitutional,
because he did not receive fair notice of the charges against him
at the arraignment. We find no merit in this claim.
An arraignment must be conducted in open court and must
consist of reading the indictment to the defendant or stating the
substance of the charge to him. See FED. R. CRIM. P. 10. “The
interests at issue are the defendant's right to know of the charges
and the right to have adequate information from which to prepare a
defense.” United States v. Correa-Venture, 6 F.3d 1070, 1073 (5th
Cir. 1993). Because the machinegun enhancement is not an element
of the offense, and need not be included in the indictment, it is
not a necessary element of the arraignment under rule 10. Olivares
knew he was charged with violations of § 924(c), and he possessed
adequate information to prepare his defense. The Due Process
23
Clause requires no more.
Indeed, since the thirty-year sentence for use of a machinegun
is merely a sentence enhancement, rather than a separate offense,
the Due Process Clause is satisfied if, as here, the defendant is
notified of the sentence enhancement prior to sentencing, rather
than trial. See United States v. Anderson, 987 F.2d 251, 257 (5th
Cir. 1993).
VI.
Olivares argues that the provision of § 924(c) mandating a
thirty-year sentence enhancement for using or carrying a machinegun
during and in relation to a drug trafficking crime is a cruel and
unusual punishment, prohibited by the Eighth Amendment. This is an
issue of first impression in this circuit.
A.
The Eighth Amendment prohibits sentences that are grossly
disproportionate to the crime. See Solem v. Helm, 463 U.S. 277,
288 (1983).9 This constitutional principle is tempered, however,
by the corollary proposition that the determination of prison
sentences is a legislative prerogative that is primarily within the
province of legislatures, not courts. See Rummel v. Estelle,
9
In Solem, the Court explained that claims of disproportionate punishment
should be analyzed by considering three objective factors: (1) the gravity of the
offense and the severity of the punishment; (2) the sentences imposed on other
criminals in the same jurisdiction; and (3) the sentences imposed for commission
of the same offense in other jurisdictions. See Solem, 463 U.S. at 290-92.
Although the Solem criteria were articulated in a challenge to a state sentence,
federal courts have applied a similar analysis in reviewing federal sentences.
See United States v. O'Banion, 943 F.2d 1422, 1432 (5th Cir. 1991).
24
445 U.S. 263, 274-76 (1980). Indeed, in its most recent pronounce-
ment concerning the proportionality doctrine, the Supreme Court
reconsidered the constitutional foundation of the principle that
disproportionate punishments are prohibited by the Eighth Amend-
ment. See Harmelin v. Michigan, 501 U.S. 957 (1991).10 It is
evident, therefore, that the contours of the proportionality
principle are less than pellucid.
The Supreme Court has equivocated on the historical pedigree
and proper scope of the Eighth Amendment proportionality doctrine,
but it has never retreated from the fundamental principle that the
determination of sentences is primarily a legislative prerogative.
See Harmelin, 501 U.S. at 998 (opinion of Kennedy, J.). Therefore,
the courts must grant “substantial deference to the broad authority
that legislatures necessarily possess in determining the types and
limits of punishments for crimes.” Solem, 463 U.S. at 290; accord
Harmelin, 501 U.S. at 999 (opinion of Kennedy, J.) (citing cases).
Accordingly, we may not substitute our own judgment concerning the
appropriateness of a particular sentence. See Solem, 463 U.S. at290 n.16; accord United States v. O'Banion, 943 F.2d 1422, 1433
(5th Cir. 1991).
Whatever the precise contours of the proportionality doctrine,
therefore, it is firmly established that successful challenges to
10
Compare Harmelin, 501 U.S. at 962-94 (opinion of Scalia, J.) (arguing
that the Eighth Amendment does not permit proportionality review by the courts)
with id. at 997-1005 (opinion of Kennedy, J.) (arguing that the Eighth Amendment
permits “narrow” proportionality review) and id. at 1009-27 (opinion of White,
J.) (arguing that proportionality review is central to the Eighth Amendment).
See also McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing
the evolution of the proportionality doctrine and its culmination in Harmelin).
25
the proportionality of punishments should be “exceedingly rare.”
See, e.g., Harmelin, 501 U.S. at 1001 (opinion of Kennedy, J.);
Solem, 463 U.S. at 289; Hutto v. Davis, 454 U.S. 370, 374 (1982);
Rummel, 445 U.S. at 272. This is not such an extraordinary case.
B.
We have concluded that the proportionality principle survives,
in the aftermath of Harmelin, only in a very circumscribed form.
When adjudicating an Eighth Amendment proportionality challenge,
we must first make a threshold comparison between the gravity of
the charged offense and the severity of the sentence. Only if we
conclude that the sentence is “grossly disproportionate” to the
offense may we proceed to consider whether it offends the Eighth
Amendment, under the test announced in Solem. If we conclude that
the sentence is not “grossly disproportionate,” our inquiry is
finished, and we must defer to the will of Congress. See McGruder
v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).11
11
See, e.g., Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.), cert.
denied, 117 S. Ct. 212 (1996); United States v. Fisher, 22 F.3d 574, 579-80 (5th
Cir. 1994); Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). While we
have stated, on at least one occasion, that Harmelin repudiated the
proportionality doctrine entirely, see United States v. Cooks, 52 F.3d 101, 105
(5th Cir. 1995), that suggestion is contrary to McGruder, the governing
interpretation of Harmelin in this circuit. See McGruder, 954 F.2d at 316(holding that the proportionality doctrine survived Harmelin); Bradford, 953 F.2d
at 1012 (observing that Harmelin preserved the proportionality doctrine but
substantially modified the analysis).
In McGruder, we held that the plurality opinion authored by Justice Kennedy
constituted the least common denominator among a majority of the Harmelin Court,
and we adopted its methodology as the rule governing claims of disproportionate
punishment in this circuit. See McGruder, 954 F.2d at 316. Under that analysis,
the essence of the inquiry is the nexus between the offense and the punishment,
and “intrajurisdictional and interjurisdictional analyses are appropriate only
in the rare case in which a threshold comparison of the crime committed and the
(continued...)
26
To determine whether a sentence is “grossly disproportionate,”
we look to Rummel v. Estelle, 445 U.S. 263 (1980), as a benchmark.12
In Rummel, the defendant had been sentenced to life imprisonment
following his conviction for obtaining $120.75 by false pretenses,
pursuant to a “recidivist statute” providing a mandatory sentence
of life imprisonment for any defendant convicted of three felonies.
Noting that the line-drawing function inherent in the determination
of punishment is a matter within the discretion of the legislature,
the Court held that the life sentence was not so grossly dispropor-
tionate as to offend the Eighth Amendment. Id. at 284-85.
In McGruder, we observed that Rummel provides a litmus test
for claims that a particular sentence is “grossly disproportion-
ate.” See McGruder, 954 F.2d at 317. McGruder was convicted of
burglary and sentenced to life imprisonment without possibility of
parole under a habitual offender statute. We held that, when
measured against Rummel, McGruder's sentence was not grossly
disproportionate, observing that McGruder's convictions for armed
robbery, escape, and burglary were more severe than the forgery and
fraud offenses for which Rummel had been convicted. Insofar as the
Supreme Court had held Rummel's sentence constitutional under the
Eighth Amendment, we concluded that McGruder's sentence was
(...continued)
sentence imposed leads to an inference of gross disproportionality.” Harmelin,
501 U.S. at 957 (opinion of Kennedy, J.).
12
We have observed that Rummel survived the subsequent decision in Solem
and controls in all cases that are not “clearly distinguishable” from Rummel.
See Smallwood, 73 F.3d at 1347; Burt v. Puckett, 933 F.2d 350, 352 (5th Cir.
1991).
27
likewise constitutional, holding that his life sentence was not
“grossly disproportionate” as a matter of law. Id.As our analysis in McGruder demonstrates, Rummel establishes
a benchmark for claims of disproportionate punishment under the
Eighth Amendment. See Smallwood v. Johnson, 73 F.3d 1343, 1347-48
(5th Cir.), cert. denied, 117 S. Ct. 212 (1996). We acknowledge
that the distinction between constitutional sentences and grossly
disproportionate punishments is an inherently subjective judgment,
defying bright lines and neutral principles of law.13 Nevertheless,
we can say with certainty that the life sentence approved in Rummel
falls on the constitutional side of the line, thereby providing a
litmus test for claims of disproportionate punishment in violation
of the Eighth Amendment.
C.
Measured against the Rummel benchmark, the thirty-year
sentence enhancement for using or carrying a machinegun during and
in relation to a drug offense is plainly constitutional. First,
the gravity of the offense is substantially greater than were the
crimes punished in Rummel. We have recognized that machineguns are
uniquely associated with drug trafficking and crimes of violence,
posing a grave threat to the public. See United States v. Kirk,
105 F.3d 997, 1000-02 (5th Cir. 1997) (opinion of Higginbotham, J.)
13
As Justice Scalia observed in criticizing the proportionality doctrine,
“the standards seem so inadequate that the proportionality principle becomes an
invitation to imposition of subjective values.” Harmelin, 501 U.S. at 986(opinion of Scalia, J.).
28
(discussing the threat posed by machineguns and the drug trade),
petition for cert. filed, 65 U.S.L.W. 3756 (U.S. May 5, 1997)
(No. 96-1759). Like the convictions for armed robbery in McGruder,
use of a machinegun during and in relation to a drug trafficking
offense is a crime of violence per se, warranting severe penalties.
See McGruder, 954 F.2d at 316-17. Measured against the convictions
for fraud and forgery that formed the basis of Rummel's sentence,
which pale in comparison to the violent crimes in the instant case,
we are satisfied that the gravity of the offense warrants a severe
punishment.14
Furthermore, the severity of the punishment is not excessive,
as evidenced by a comparison to the Rummel benchmark. In Rummel,
the Court upheld the constitutionality of a life sentence imposed
on a non-violent criminal pursuant to a recidivist statute. See
Rummel, 445 U.S. at 285. Likewise, in McGruder we upheld the
constitutionality of a life sentence without possibility of parole
under a habitual offender statute. See McGruder, 954 F.2d at 317.
In contrast, the sentence enhancement at issue in the instant case
merely imposes a sentence of thirty years for using or carrying a
machinegun during and in relation to a drug trafficking offense.15
14
The Supreme Court has observed that “[a]s the criminal laws make clear,
non-violent crimes are less serious than crimes marked by violence or the threat
of violence.” Solem, 463 U.S. at 292-93.
15
Proportionality review is particularly problematic when it is invoked
to draw quantitativeSSrather than qualitativeSSdistinctions among punishments.
For example, the Supreme Court has applied the proportionality doctrine to review
the constitutionality of capital punishment, because “'[t]he penalty of death
differs from all other forms of criminal punishment.'” Rummel, 445 U.S. at 272(quoting Furman v. Georgia, 408 U.S. 238, 306 (1972) (opinion of Stewart, J.)).
In contrast, the Court has been reluctant to apply the proportionality doctrine
(continued...)
29
Accordingly, the thirty-year sentence enhancement for using or
carrying a machinegun during and in relation to a drug trafficking
crime is not “grossly disproportionate” to the gravity of the
offense, when it is measured against the Rummel benchmark. The
gravity of the offense is greater, and the penalty less severe,
than were the life sentences upheld against Eighth Amendment
challenges in Rummel and McGruder. Consequently, our inquiry is at
an end.16
VII.
Claiming that the machinegun was not admitted into evidence at
trial, Gonzales, Jr., argues that the district court reversibly
erred by allowing jurors to inspect it during deliberations.
Following the verdict, the district court denied Gonzales's motion
for judgment of acquittal.
A.
This court takes a dim view of permitting jurors to consider
(...continued)
to prison terms, because “our decisions recognize that we lack clear objective
standards to distinguish between sentences for different terms of years.”
Harmelin, 501 U.S. at 1001 (opinion of Kennedy, J.). Under these circumstances,
we must be particularly deferential to legislative determinations of sentences.
See Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (per curiam).
16
See Solem, 490 U.S. at 290 n.16 (“In view of the substantial deference
that must be accorded legislatures and sentencing courts, a reviewing court
rarely will be required to engage in extended analysis to determine that a
sentence is not constitutionally disproportionate.”); United States v. Martinez,
967 F.2d 1343, 1347-48 (9th Cir. 1992); see also United States v. Duerson,
25 F.3d 376, 384 (6th Cir. 1994) (citing United States v. Elder, Nos. 91-5605,
91-5606, 1992 WL 42346 (6th Cir. Mar. 3, 1992) (unpublished) (holding the
machinegun sentence enhancement constitutional)); United States v. Santos,
64 F.3d 41, 45-47 (2nd Cir. 1995) (holding the silencer sentence enhancement
under § 924(c) constitutional), vacated on other grounds, 116 S. Ct. 1038 (1996).
30
items that were not properly admitted into evidence. “It is firmly
established in this circuit that a defendant is entitled to a new
trial when extrinsic evidence is introduced into the jury room
'unless there is no reasonable probability that the jury's verdict
was influenced by the material that improperly came before it.'”
United States v. Luffred, 911 F.2d 1011, 1014 (5th Cir. 1990)
(citation omitted); accord United States v. Ruggiero, 56 F.3d 647,
652 (5th Cir.), cert. denied, 116 S. Ct. 397, and cert. denied,
116 S. Ct. 486 (1995). There is a rebuttable presumption of
prejudice; consequently, the conviction must be reversed unless the
government establishes that the error was harmless. Ruggiero,
56 F.3d at 652; Luffred, 911 F.2d at 1014. We need not reach this
issue, however, if the machinegun was properly admitted into
evidence.
B.
When the machinegun was first introduced by the government,
defense counsel raised a chain of custody objection, and the court
reserved a ruling on the question pending the remaining testimony.
The issue did not arise again until the jury requested the weapon,
at which time defense counsel renewed his objection, claiming that
the weapon had never been admitted into evidence. On the contrary,
the government responded that the chain of custody had been proven.
After considering these arguments, the court overruled the
objection and permitted the jury to inspect the machinegun.
This decision was tantamount to an implicit ruling that the
31
chain of custody had been proven and the evidence was admissible.
We review the admission of evidence only for abuse of discretion.
See United States v. Royal, 972 F.2d 643, 648 (5th Cir. 1992).
After reviewing the record, we are satisfied that the government
introduced sufficient testimony to establish the chain of custody,
and the court did not abuse its discretion by admitting the
machinegun into evidence.17
The instant case is distinguishable from Luffred, therefore,
because the machinegun was properly admitted into evidence before
it was submitted to the jury during deliberations. Consequently,
the weapon was not “extrinsic evidence,” and Luffred is inapposite.
Whereas the Luffred jury inadvertently obtained extrinsic evidence,
in the instant case the court expressly ordered that the machinegun
be submitted to the jury. Under these circumstances, the court did
not abuse its discretion in permitting the jury to inspect the
machinegun.
C.
Even assuming arguendo that the district court erred in
submitting the machinegun to the jury, the error was harmless. In
determining whether the introduction of extrinsic evidence was
harmless, we must consider its content, the manner in which it came
before the jury, and the weight of the evidence offered against the
17
Although we are satisfied that the weapon was admissible, we express no
opinion as to whether the district court abused its discretion by reserving its
ruling on the chain of custody objection until jury deliberations had commenced,
as Gonzales, Jr., does not raise this issue on appeal.
32
defendant. Ruggiero, 56 F.3d at 653; Luffred, 911 F.2d at 1014.
The government introduced overwhelming evidence to prove that
the machinegun had been used during and in relation to the drug
trafficking crime, including the testimony of Garcia, who con-
fronted Olivares as he drew the machinegun, and Meisel, who
discovered the weapon in the pool table. Likewise, the government
introduced the statement of Gonzales, Jr., who claimed to be the
owner of the machinegun following his arrest.
Moreover, an ATF agent identified the weapon and testified
that the semi-automatic rifle had been modified into an automatic
weapon. Finally, a photograph of the machinegun was submitted to
the jury. Under these circumstances, there is no reasonable
possibility that the introduction of the machinegun influenced the
verdict.18
VII.
Gonzales, Jr., argues that the district court erred in denying
his motion for new trial on the basis of newly discovered evidence,
alleging that the government did not disclose exculpatory evidence
before trial, as required by Brady v. Maryland, 373 U.S. 83 (1963).
We reject this argument.
18
Gonzales, Jr., cites Luffred for the proposition that the mere fact that
the jury requests to consider extrinsic evidence renders it per se prejudicial.
Luffred, 911 F.2d at 1014. Luffred must be limited to its unique facts, however.
The extrinsic material at issue there was a chart that illustrated a series of
transactions, implying relationships that were not supported by the evidence.
In contrast, the machinegun at issue in the instant case was physical evidence,
and its submission did not introduce any inherently inadmissible or prejudicial
material into the jury's deliberations.
33
A.
We review Brady determinations de novo. United States v.
Green, 46 F.3d 461, 464 (5th Cir.), cert. denied, 115 S. Ct. 2629(1995). Brady violations require reversal only if there is a
“reasonable probability” that the outcome of the trial would have
been different if the evidence had been disclosed to the defendant.
See United States v. Bagley, 473 U.S. 667, 682 (1985). A “reason-
able probability” is established only when the failure to disclose
the evidence “could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.”
Kyles v. Whitley, 514 U.S. 419, 435 (1995). Although this standard
does not require the defendant to establish that he would have been
acquitted had the evidence been disclosed, he must establish that
the suppression of exculpatory evidence by the government “'under-
mines confidence in the outcome of the trial.'” Id. at 434(quoting Bagley, 473 U.S. at 678).
B.
Donaciano Ortega (“Doni”), who pleaded guilty prior to trial,
allegedly told the police he did not believe that Gonzales, Jr.,
had been involved in the drug conspiracy. Based on this statement,
Gonzales, jr., claimed the government had suppressed exculpatory
evidence.
Assuming arguendo that the alleged statement was exculpatory,
it does not merit a new trial, as Gonzales, Jr., suffered no
34
prejudice.19 First, the district court noted that other witnesses
testified that Gonzales, Jr., was not a member of the drug
trafficking conspiracy. We have consistently held that there is no
Brady violation where undisclosed evidence is merely cumulative.
See Spence v. Johnson, 80 F.3d 989, 995 (5th Cir.), cert. denied,
117 S. Ct. 519 (1996).20
Furthermore, the evidence against Gonzales, Jr., was over-
whelming. Fingerprints on the paper bag containing the cocaine
belonged to Gonzales, Jr. He made incriminating statements
following the arrest, claiming ownership of the cocaine and the
machinegun. Olivares testified that Gonzales, Jr., had owned the
machinegun. Given the weight of this evidence, the exclusion of
one equivocal statement by a co-conspirator does not undermine
confidence in the verdict, Kyles, 514 U.S. at 434-35, as there is
no reasonable probability that Gonzales would have been acquitted
if the exculpatory testimony had been admitted, Bagley, 473 U.S.
at 682.
The judgments of conviction and sentence are AFFIRMED.
19
At a hearing on the motion for new trial, the government hotly contested
the charge that it had concealed exculpatory information, insisting that Doni did
not exculpate Gonzales from the conspiracy. Furthermore, Doni admitted that his
opinion was not based on personal knowledge. The district court found that the
conflicting evidence was inconclusive, and it was not persuaded that Doni had
made exculpatory statements obligating the government to disclose the testimony.
Because we conclude that Gonzales has failed to demonstrate prejudice, however,
we need not consider whether the contested statements were subject to Brady.
20
See also Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996) (finding
no Brady violation where statements included in a suppressed offense report were
contained in other records and testimony), cert. denied, 117 S. Ct. 773 (1997);
Allridge v. Scott, 41 F.3d 213, 218 (5th Cir. 1994) (holding that the failure to
disclose cumulative evidence could not have affected the outcome of the trial).
35