[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT NOV - 6 2000 THOMAS K. KAHN No. 98-5169 CLERK ________________________
D. C. Docket No. 96-00565-CR-LCN
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBVERTO PRIETO,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________ (November 6, 2000)
Before TJOFLAT, MARCUS and BRIGHT*, Circuit Judges.
MARCUS, Circuit Judge:
* Honorable Myron H. Bright, U.S. Circuit Judge for the Eighth Circuit, sitting by designation. This appeal arises from the conviction of Defendant Carlos Albverto Prieto
for crimes committed in connection with a conspiracy to rob a United Parcel
Service (UPS) truck. Following a jury trial, Prieto was convicted of conspiracy to
commit robbery, attempted robbery, and the use of a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. §§ 1951(a), and 924(c)(1).
Defendant attacks his convictions, alleging first that the district court abused its
discretion in admitting the prior consistent statement of a witness made to a police
officer following the witness’s arrest, and second, that the district court erred in
giving the Eleventh Circuit Pattern Jury Instruction regarding codefendants’ guilty
pleas. Because we can discern no reversible error, we AFFIRM.
I.
The relevant facts are straightforward. Beginning in May of 1996, and
continuing until June 11, 1996, Prieto, Rodolfo Jose Palacios, and several other
codefendants engaged in a conspiracy to rob a UPS truck. Prieto and his co-
conspirators had inside information that a certain UPS truck route carried
expensive computer equipment, and they schemed to rob a truck running that route.
According to their plan, one car would block the path of the UPS truck, and the
driver and passengers would then exit the car and abduct the UPS driver at
gunpoint. The driver’s hands and feet would be bound with rope or duct tape, and
2 a co-conspirator wearing a UPS uniform would replace the driver. Disguised as a
UPS employee, the co-conspirator would drive the truck to an off-loading site
where the computer hardware would be removed.
Though the conspirators conducted several dry runs, the conspirators
bungled their first attempted robbery, on June 4, 1996. Subsequently, there were
problems with the van to be used in the robbery, and one of the conspirators was
arrested on other charges. Then on June 11, 1996, the conspirators failed in their
second attempted robbery. They successfully blocked the UPS truck with a Toyota
Corolla, but aborted the robbery after they observed a car approaching. The UPS
truck contained items that had been shipped in interstate commerce, including two
boxes of computer chips with a combined cash delivery value of over $60,000.
On February 4, 1997, a grand jury sitting in the Southern District of Florida
returned an eight-count indictment charging Prieto and nine codefendants with
various conspiracy, robbery and firearms charges arising from the two failed
episodes. All codefendants except for Prieto and two others pled guilty.1 Prieto
was charged with conspiracy to commit robbery, two counts of attempt to commit
robbery, and two counts of using a firearm during a crime of violence. A jury
found Prieto guilty as charged.
1 One was convicted on several counts, and the other was acquitted on all charges.
3 II.
A district court is granted broad discretion in determining the admissibility
of a prior consistent statement under Fed. R. Evid. 801(d)(1)(B) and will not be
reversed absent a clear showing of abuse of discretion. See United States v. Reed,
887 F.2d 1398, 1405 (11th Cir. 1989).
Where a party makes no objection in the trial court to the matter complained
of on appeal, our review is for plain error. We find plain error only where (1) there
is an error; (2) the error is plain; (3) the error affects the defendant’s substantial
rights in that it was prejudicial and not harmless; and (4) the error seriously affects
the fairness, integrity or public reputation of a judicial proceeding. See United
States v. Olano, 507 U.S. 725, 730-32, 113 S.Ct. 1770, 1775-76, 123 L. Ed. 2d
508, (1993). We therefore review the district court’s use of the Eleventh Circuit
Pattern Jury Instruction for plain error.
A. Rule 801(d)(1)(B): Hearsay Exception
Palacios was arrested on October 24, 1996. He gave a statement on the
evening of his arrest, signed a cooperation agreement with the Government in
November of 1996, and ultimately pled guilty in April of 1997. Palacios became
one of the government’s key witnesses against Prieto, testifying extensively
concerning Prieto’s involvement in the attempted UPS truck robberies. To bolster
4 Palacios’s testimony, the Government sought to offer the testimony of Metro-Dade
Police Detective Joseph Gross, regarding prior consistent statements Palacios made
on the evening of his arrest.
Though Palacios’s statements would ordinarily be inadmissible hearsay, the
government sought to introduce them to rebut a charge of recent fabrication
pursuant to Rule 801(d)(1)(B). Rule 801(d)(1)(B) provides, in pertinent part, that a
prior consistent statement by a witness is not hearsay if (1) the declarant testifies at
the trial or hearing and is subject to cross-examination concerning the statement,
and (2) the statement is consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive. Fed. R. Evid. 801(d)(1)(B). In Tome v. United
States, 513 U.S. 150, 157-58, 115 S.Ct. 696, 701, 130 L. Ed. 2d 574 (1995), the
Supreme Court held that to be admissible pursuant to Rule 801(d)(1)(B), prior
consistent statements must have been made before the alleged influence or motive
to fabricate arose.
The central question raised by this appeal is whether Palacios had a motive
to fabricate in order to curry favor with the government at the time he made his
statements to Detective Gross. In order to decide this question, the trial judge
heard argument outside the presence of the jury regarding whether Palacios had a
5 motive to fabricate at the time of his statement to Detective Gross. The
government said that although Palacios made the statement following arrest, it was
given prior to any cooperation agreement between Palacios and the government
and thus there was no motive to fabricate. The defense suggested, however, that a
person inevitably has a motive to try to reduce the penalties against him through
cooperation with the government immediately upon arrest. The trial judge
conducted an examination during which Agent Fabregas, who was present at
Palacios’s arrest and who brought him to F.B.I. headquarters, testified that the
subject of cooperation was not raised with Palacios. Indeed, Detective Gross, who
was present from the beginning of Palacios’s interrogation, testified that to his
knowledge, there had been no discussions with Palacios regarding the possibility
of cooperation with the government. Both witnesses unambiguously said that
Palacios voluntarily began talking to the agents during the interrogation, and that
he did not ask any questions about what benefits, if any, he might receive in
exchange for his cooperation.
Based on the examination and the arguments heard regarding the relevant
case law, the district court ruled that Palacios’s prior consistent statements were
admissible. We agree.
6 The trial judge was cautious and methodical in rendering the 801(d)(1)(B)
ruling. She heard legal arguments from both sides and held a hearing in limine
during which several agents testified as to the events that transpired from the time
of Palacios’s arrest, continuing through his interrogation. Her comments reflect
thorough consideration:
I read these cases that were cited yesterday in the record. And I think that it’s been clear from the testimony that was taken that the statement clearly predated and [sic] the motive to fabricate or to obtain a better deal . . ..
But the record is clear that he was given his Miranda rights, that is, Mr. Palacios. And then he started making statements to Agent Gross without asking anything to the extent of am I gonna get a deal or what’s in it for me, or words to that effect.
Judge Nesbitt squarely found as a matter of fact that Palacios did not have a motive
to fabricate at the time of his statements to Detective Gross.
Based on a review of this record, the district court’s finding is not clearly
erroneous. Therefore, the only way the district court could have abused its
considerable discretion in admitting Palacios’s prior consistent statements is if we
hold, as a matter of law, that any post-arrest statement is necessarily tinged with a
motive to lie in order to curry favor with the government. In essence, what the
defense seeks is the creation of a bright line, per se rule barring the admission of
7 any prior consistent statements made by a witness following arrest. We decline to
adopt such a rule.
Whether a motive to fabricate attaches upon arrest presents a matter of first
impression in this Circuit. The only case in this Circuit to address the Supreme
Court’s holding in Tome is United States v. Paradies, 98 F.3d 1266 (11th Cir.
1996), cert. denied, 521 U.S. 1106, 117 S.Ct. 2483, 138 L. Ed. 2d 992 (1997),
which presents a very different set of facts. In Paradies, the parties conceded error
where the district court, pursuant to Rule 801(d)(1)(B), admitted tape-recorded
conversations that had been recorded after one of the participants had agreed to
cooperate with the government. Id. at 1290. Indeed, both parties concede that a
motive to fabricate would have arisen upon Palacios’s arrest if he had inquired
into, or been promised leniency if he cooperated. In this case, however, the
uncontroverted testimony established and the district court found that Palacios
made his prior consistent statements to Detective Gross prior to any discussion of
cooperation or leniency. Because of this critical difference Paradies is inapposite.
Several courts have held that a motive to fabricate does not always and
necessarily attach upon arrest, but rather that whether a statement is tinged with a
motive to lie is a question of fact to be determined by the trial court according to
the particular circumstances of each case. See United States v. Roach, 164 F.3d
8 403, 410 (8th Cir. 1998), cert. denied sub nom., Tail v. United States, 120 S.Ct.
117, 145 L. Ed. 2d 99 (1999) (affirming admission of prior consistent statements
made in a post-arrest interview); United States v. Tate, 1998 WL 637422 at *3 (4th
Cir. 1998) (unpublished table decision) (factual finding that admission of prior
consistent statements made to police -- one prior to arrest, the day of arrest, and
one two days after arrest -- did not constitute plain error).
In United States v. Fulford, 980 F.2d 1110 (7th Cir. 1992), the court
affirmed the admission of prior consistent statements made by a witness under
circumstances similar to those in this case. In Fulford, the witness’s prior
consistent statements had to do with a coconspirator’s participation in the sale and
distribution of methamphetamine. Following arrest, the witness was advised of his
Miranda rights and he agreed to provide information to the arresting officers.
Notably, the witness was not given any deal or other incentive to offer information,
but was merely told that his cooperation would be brought to the attention of the
United States Attorney. Subsequently, he pleaded guilty at his arraignment and
only later entered into a cooperation agreement with the government. As in this
case, the defense argued that the witness fabricated post-arrest statements in the
hope of receiving a lighter sentence in exchange for his cooperation. The court
rejected this argument on the ground that it could not “say that the district judge
9 abused his discretion in allowing [the prior consistent statements] because
reasonable minds can differ as to when [the witness] may have first possessed a
motive to fabricate.” Id. at 1114. Rather than attaching automatically upon arrest,
the court recognized that a judge could reasonably find that a motive to fabricate
did not exist until the witness entered into the cooperation agreement with the
government. And in the instant case there was no inquiry or comment about
cooperation at all.
We agree that statements made after arrest are not automatically and
necessarily contaminated by a motive to fabricate in order to curry favor with the
government. To hold otherwise, as the defense urges us to do, would “effectively
swallow[] the rule with respect to prior consistent statements made to government
officers: by definition such statements would never be prior to the event of
apprehension or investigation by the government which gave rise to a motive to
falsify.” United States v. Henderson, 717 F.2d 135, 139 (4th Cir. 1983).
Indeed, we recognize that a variety of motives may drive a person’s decision
to disgorge the details of a crime he has committed. For one, as this Court’s
predecessor recognized, a man’s conduct is often controlled by his conscience.
See United States v. Pulvano, 629 F.2d 1151, 1157 n.8 (5th Cir. 1980) (“As R.L.
Stevenson phrased it: ‘There’s just one thing I cannot bear, and that’s my
10 conscience.’”) (quoting from Scots, XIV, My Conscience). For another, it is
certainly true that “the world’s great religions teach in one form or another that
confession is good for the soul and that by making confession one may be absolved
. . ..[T]o many people telling the truth and ‘coming clean’ satisfies a basic spiritual
need of one who has transgressed and provides a measure of relief.” United States
ex rel. Williams v. Fay, 323 F.2d 65, 72 (2nd Cir. 1963). Confession may also be
an emotional response triggered by feelings of remorse and sorrow. See Bryant v.
Vose, 785 F.2d 364, 368 (1st Cir. 1986) (concluding that confession was triggered
by sorrow and remorse rather than a desire for leniency). No doubt there are other
motivators as well, including the desire to curry favor with law enforcement and
obtain a more favorable outcome.
But given the complexity of the human psyche, we agree with the Fourth,
Seventh, and Eighth Circuits that whether a witness had a motive to fabricate when
prior consistent statements were made is plainly a question of fact to be resolved
by the trial court based precisely on the particular circumstances of an individual
case. Quite simply, the trial court is in the best position to make that determination
and its determination deserves great deference.
We are unpersuaded by the cases the defendant cites to the contrary.
Defendant directs our attention to several cases where courts have affirmed rulings
11 that prior consistent statements made after arrest were inadmissible. The defense
argues that based on these cases, we should find that motive to fabricate inevitably
attaches upon arrest. These cases are for the most part distinguishable. In United
States v. Awon, 135 F.3d 96, 100 (1st Cir. 1998), the court held that two brothers’
statements were equally contaminated by a motive to fabricate when they first
spoke with police as when they subsequently testified at trial. In that case,
however, both brothers testified that they spoke with investigators only after the
potential benefits of cooperation had already been discussed. Awon, 135 F.3d at
100. Here, the trial judge found that Palacios made his statements before any
discussion of cooperation. The court’s holding in United States v. Albers, 93 F.3d
1469, 1483 (10th Cir. 1996), is similarly distinguishable. In Albers, one witness
feared that all of the other conspirators would testify against him, and the other
made his statements contemporaneously with his request that the court appoint him
a new lawyer and allow him to appeal his conviction. Here, in contrast, there was
no evidence that Palacios either feared the testimony of the other conspirators or
that he was attempting to curry favor with a trial judge.
United States v. Collicott, 92 F.3d 973, 978 (9th Cir. 1996), on which
Palacios also relies, actually supports the conclusion that the question of when a
motive to fabricate attaches is a question of fact. In Collicott, the witness had been
12 stopped by police in her car, which contained drugs, when she made the prior
consistent statement. Under a per se rule that motive to fabricate attaches upon
arrest, her statements would have been admissible because they preceded arrest.
However, based on the specific facts of the case (that is, being questioned by police
while in possession of drugs), the court in Collicott determined that the witness’s
motive to fabricate arose before any arrest was made. Collicott thus supports a
case-by-case factual inquiry into the motives of the witness at the time of the prior
consistent statement.
Finally, to the extent that United States v. Moreno, 94 F.3d 1453, 1455 (10th
Cir. 1996), and United States v. Forrester, 60 F.3d 52, 64 (2nd Cir. 1995), may be
read to stand for a bright line rule that motive to fabricate necessarily and
automatically attaches upon arrest, we decline to adopt such a per se rule. As we
have noted, the creation of such a bright line rule would swallow whole the
801(d)(1)(B) exception. See Henderson, 717 F.2d at 139. Moreover, given the
variety of motives that may influence an individual’s decision to confess, we are
convinced that the adoption of a per se rule mistakenly would take all discretion
from the trial judge in a fact intensive context calling for just the opposite result --
an individualized and careful calibration of complex fact. We therefore hold that
whether a witness had a motive to fabricate when a prior consistent statement was
13 made is a factual question properly decided by the district court and subject to
reversal only for a clear abuse of discretion. Here, the trial court’s unambiguous
finding that Palacios did not have a motive to fabricate when he made his
statements to Detective Gross did not abuse that broad discretion.
B. Eleventh Circuit Pattern Jury Instruction
Prieto also argues that the district court committed plain error in using the
Eleventh Circuit pattern jury instruction regarding codefendants’ guilty pleas. The
court instructed the jury in these terms:
In this case, the Government has called as some of its witnesses people named as codefendants in the indictment with whom the Government has entered into a plea agreement providing for the possibility of a lesser sentence than the witnesses would otherwise be exposed to. Such plea bargaining, as it is called, has been approved as lawful and proper, and it is expressly provided for in the rules of this Court. However, a witness who hopes to gain more favorable treatment may have a reason to make a false statement because the witness wants to strike a good bargain with the Government. So while a witness of this kind may be entirely truthful while testifying, you should consider such testimony with more caution than the testimony of other witnesses.
Of course, the mere fact that a witness has pled guilty to the crimes charged in the indictment is not evidence, in and of itself of the guilt of any other person.
Eleventh Circuit Pattern Jury Instruction 1.2 (emphasis added). Prieto argues that
this instruction misadvised the jury that his codefendants’ guilty pleas could be
14 used as substantive evidence of his guilt if considered in conjunction with the other
evidence in the case.
Prieto did not object to the use of this instruction at trial and therefore
acknowledges that our review is for plain error. See Fed. R. Crim. P. 52(b); 507
U.S. at 730-32; United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1996).
Plain error is, by its terms, error which is so obvious and substantial that it
should not have been permitted by the trial court even absent the defendant’s
timely assistance in detecting it. See United States v. Martinez, 83 F.3d 371, 376
(11th Cir. 1996). For it to be “plain,” the error must either have been clear under
the law at the time the error was made, or clearly contrary to the law at the time of
the appeal. Mitchell, 146 F.3d at 1342-43 (citing Olano, 507 U.S. at 734). In
United States v. Abravaya, 616 F.2d 250, 252 (5th Cir. 1980), we considered the
jury instruction in question and held that the instruction was not error, plain or
otherwise. Many other courts have approved accomplice instructions containing
the “in and of itself” language of which Prieto complains. See United States v.
Posada-Rios, 158 F.3d 832, 872 (5th Cir. 1998), cert. denied sub nom., Murga v.
United States, 526 U.S. 1031, 119 S.Ct. 1280, 143 L. Ed. 2d 373 (1999); see also
United States v. Gonzalez-Gonzalez, 136 F.3d 6 (1st Cir. 1998), cert. denied, 524
U.S. 910, 118 S.Ct. 2074, 141 L. Ed. 2d 150 (1998). We are satisfied that the
15 district court did not commit any error, let alone plain error, in giving the Eleventh
Circuit Pattern Jury Instruction and accordingly affirm.
AFFIRMED.