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*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-7455
Summary Calendar
United States of America, Plaintiff-Appellee,
versus
Lorenzo Guerrero, Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(CR-L-91-275)
February 19, 1993
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Guerrero appeals his conviction at trial of conspiracy to
possess with intent to distribute marijuana and of possession with
intent to distribute marijuana. Guerrero makes three complaints:
(1) that a confession was impermissibly admitted at trial; (2) that
the government's release of undocumented alien witnesses required
a dismissal of the charges; and (3) that the district judge

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2
prejudiced his trial by reopening the government's case to
introduce the written confession. We affirm.
I
On the night of December 7, 1991, border patrol agents were
watching a creek which runs into the Rio Grande near Laredo, Texas.
The creek runs behind Guerrero's residence. The agents observed
eight men wearing packs coming from the river. The agents followed
those men into Guerrero's back yard. First one man went alone to
Guerrero's house, then others carried bundles to the house. Agents
observed a man looking out of the rear window of the Guerrero
house, while they could hear the noise made by the couriers.
The agents called for backup, and as additional units arrived
the men under observation scattered and fled. Most of them
escaped, but agents discovered an alien hiding on the floor of a
Suburban automobile parked in Guerrero's driveway. Another alien
was found hiding under a tarp by Guerrero's kitchen door. Two bags
of marijuana was found by the door and large bundles of marijuana
were discovered in the Suburban. The two aliens were arrested.
Guerrero was at home at the time, and Border Patrol Agent
Villarreal testified that he told Guerrero his Miranda rights.
Guerrero indicated that he understood his rights. Guerrero and his
wife were transported along with their child to the border patrol
office around midnight. Around 4:00 a.m., customs agents picked up
the Guerrero family. Customs Agent Torres testified to giving
Guerrero Miranda warnings at the border patrol office. Customs
agents then took the Guerrero family to the Customs Service office,

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1Guerrero's statement says that he could not recall Mario's
surname as he was writing the confession.
2Guerrero has not asserted a violation of the prophylactic
rule of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981),
in his brief on appeal. His failure to prosecute that issue on
appeal constitutes waiver of the claim. See United States v.
Green, 964 F.2d 365, 371 (5th Cir. 1992), cert. denied, 61
U.S.L.W. 3478 (Jan. 11, 1993).
3
where Guerrero signed a waiver of his rights and wrote an
incriminating statement around 7:00 a.m.
Guerrero's statement says that he was contacted by a "wetback"
who told Guerrero that Mario1 would pay Guerrero $4500 to deliver
a load of marijuana to the car lot where Mario worked. Guerrero
wrote that marijuana was brought across the river and loaded into
the Suburban, which Guerrero had borrowed from his brother-in-law
Roach. Roach was to drive the load to Mario.
Before trial, Guerrero moved to suppress the written
confession. Guerrero contended that the statement was coerced,
that he was denied counsel after requesting assistance,2 and that
he was not advised of his Miranda rights. Following a pretrial
suppression hearing, the district court denied Guerrero's motion.
At trial, Guerrero testified about the circumstances surrounding
the giving of the statement, and the district court instructed the
jury to consider whether the statement was voluntarily made in
determining its verdict.
Guerrero also filed a motion to dismiss the indictment because
the government released the two aliens before affording Guerrero an
opportunity to interview these witnesses. The record does not
reflect whether or when these aliens were deported, as Guerrero

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contends. Guerrero sought a hearing on this motion in March, 1992.
The government stated that the two aliens had invoked their Miranda
rights and refused to answer questions. Charges against the two
had been dismissed in January 1992 due to the insufficiency of
evidence against them. Noting the tardiness of Guerrero's motion,
the district court denied it.
II
Guerrero contends that his confession was inadmissible,
because he did not receive Miranda warnings and because
intoxication and coercion prevented any waiver of rights from being
knowingly and voluntarily made. When reviewing a pretrial
suppression ruling, we must give credence to the credibility
choices and findings of fact of the district court unless clearly
erroneous. United States v. Rogers, 906 F.2d 189, 190 (5th Cir.
1990). A fact finding is clearly erroneous only when the reviewing
court is left with the definite and firm conviction that a mistake
has been committed. The issue of voluntariness, however, is a
legal question which we may independently determine in light of the
facts as found. See id.
The government bears the burden of proving that both the
waiver of Miranda rights and the confession were voluntary. United
States v. Raymer, 876 F.2d 383, 386 (5th Cir.), cert. denied, 493
U.S. 870 (1989). The totality of circumstances must be considered
in determining whether a statement is the product of the accused's
free and rational choice. Rogers, 906 F.2d at 190. Although a
defendant's mental state is considered, coercive police activity is

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3At the suppression hearing, Guerrero claimed that he
swallowed three grams of cocaine.
5
a necessary predicate to finding that a confession or waiver of
Miranda rights was made involuntarily. Colorado v. Connelly, 479
U.S. 157, 167-70, 107 S. Ct. 515, 522- 523 (1986).
At trial, Border Patrol Agent Villarreal testified that he
read Guerrero Miranda rights at his house. At his suppression
hearing, Guerrero admitted that border patrol agents read him his
rights. Customs Service agents arrived at the border patrol office
to take custody of Guerrero around 4:00 a.m. Customs Agent Simmons
testified at the suppression hearing that Customs Agent Torres gave
Guerrero Miranda warnings at the border patrol office. Agents
Simmons and Torres took the Guerrero family to the Customs Service
office. Agent Simmons stated at the hearing that he advised
Guerrero of his rights once more at the Customs Service office
before interrogating Guerrero. At trial, Agent Simmons testified
that he showed Guerrero his rights in writing. The district
court's rejection of the contention that Guerrero was not advised
of Miranda rights before questioning is not clearly erroneous.
Guerrero maintains that he was extremely intoxicated during
questioning, so that any waiver of his rights was not knowingly and
voluntarily made. Guerrero testified at trial that on December 7
he consumed almost a dozen drinks and beers and more than two grams
of cocaine. He claimed that when agents arrived at his residence,
he swallowed another four grams of cocaine.3 According to
Guerrero, at the time of his arrest, in the presence of agents and

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his wife, he put a plastic bag containing the cocaine in his mouth,
chewed it until the cocaine dissolved, and spit out the bag.
Border Patrol Agent Melendez testified at trial that he was
present when Guerrero first exited the house. Melendez instructed
Guerrero to show his hands and watched Guerrero while other agents
spoke to him. Agent Melendez testified that Guerrero did not have
anything in his hands and did not put anything into his mouth. Dr.
Pena, the specialist in addictive disorders who testified at trial,
stated that a sleep-deprived person who ingested five grams of
cocaine at one time would die or exhibit psychotic behavior. A
person who consumed cocaine in the manner Guerrero described
himself as doing would not be capable of behaving in a calm manner
and answering questions understandably. Customs agents testified,
however, that Guerrero was calm and collected during his
interrogation and confession.
Guerrero also argues that he was coerced into writing the
statement. Guerrero emphasizes that he was separated from his wife
and child at the Customs Service office, and had been kept awake
all night without eating. According to Guerrero, customs agents
told him that his family could leave if he signed a statement.
Agent Torres testified at the suppression hearing that Mrs.
Guerrero was released before 7:00 a.m., when she was deemed no
longer a suspect. Mrs. Guerrero and her child had to wait at the
Customs Service office for about an hour for someone to come to
pick them up. They were free to leave before Guerrero signed his

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statement at about 7:00 a.m. Agents Torres and Simmons denied
making any promises or threats to Guerrero.
Guerrero claims that Agent Simmons coached him in writing the
statement, saying that it would help Guerrero and that Agent
Simmons would "go easy" on Guerrero. On cross-examination Guerrero
admitted that he wrote the statement, but claimed that he had no
recollection of its contents, which were dictated to him by Agent
Simmons.
At the suppression hearing, Agent Torres said that he advised
Guerrero of his rights at the border patrol office. Agent Simmons
repeated the Miranda warning at the Customs Service office. Agent
Torres testified that Guerrero acknowledged understanding his
rights and was willing to speak to the agents. Guerrero reportedly
offered to provide information on criminal activity and was told
that cooperation would be reported to the U.S. Attorney.
The preponderance of the evidence reflects that Guerrero
voluntarily waived his Miranda rights and gave an incriminating
statement. Guerrero's assertion that he was incapable of acting
voluntarily must fail because the claim that he ingested three to
four grams of cocaine at the time of his arrest is not credible.
It is contradicted by the observation of the arresting officer, the
medical testimony regarding the effects of such consumption, and
the evidence of Guerrero's demeanor while in custody. The
legibility of the statement which Guerrero claims to have written
while extremely intoxicated also belies his assertion. Since there
is no credible evidence that Guerrero lacked mental competence, we

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4Of course, Guerrero's mental condition alone could not
render his waiver of rights or confession involuntary in the
constitutional sense. See Connelly, 479 U.S. 157, 107 S. Ct. 515
(1986). The point is that if there was no mental incompetence,
police could not have knowingly exploited or otherwise acted
improperly with respect to it.
8
cannot independently find that Guerrero's confession or waiver of
rights was involuntary on that basis.4
Likewise, the district court did not clearly err in finding
that government agents did not improperly coerce or induce Guerrero
to write a confession. The testimony of Agents Simmons and Torres
was consistent and denied police overreaching. Guerrero's
testimony, in contrast, lacked consistency. For example, he
testified that he remembered particular inducements made by agents
but denied recalling the contents of the statement that he wrote.
Where both the district court and a jury have heard a defendant's
claims of coercion and rejected them, we give great weight to their
findings. See United States v. Causey, 835 F.2d 1527, 1528-29 (5th
Cir. 1988).
III
Guerrero contends that he was denied his right to
confrontation and compulsory process by the government's release of
the two aliens found on his property. He suggests that the aliens
could have testified as to who instructed them to deliver marijuana
to his property and who they were to meet there.
"The mere fact that the Government deports . . . [alien]
witnesses is not sufficient to establish a violation of the
Compulsory Process Clause of the Sixth Amendment or the Due Process

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5It is not evident from the record that the aliens were
deported.
9
Clause of the Fifth Amendment. A violation of these provisions
requires some showing that the evidence lost would be both material
and favorable to the defense." United States v. Valenzuela-Bernal,
458 U.S. 858, 872-73, 102 S. Ct. 3440, 3449 (1982). If the
defendant is not afforded an opportunity to interview a witness
prior to his release, the specificity required in showing
materiality is relaxed, but is not eliminated. Id. at 870, 102 S.
Ct. at 3448. Guerrero must make "a plausible showing" that the
deported witnesses' testimony would have assisted his defense. To
do so, he "may advance additional facts, either consistent with
facts already known to the court or accompanied by a reasonable
explanation for their inconsistency with such facts." Id. at 873,
102 S. Ct. at 3449.
Guerrero has not advanced additional facts, by stipulation or
verified by oaths or affirmation, showing that the two alien
witnesses would have supported his claim of innocence. Guerrero
would infer their ability to inculpate him from the fact that the
government released them,5 arguing that otherwise the government
would have detained them and produced them as witnesses against
him. On the contrary, the government represented that the aliens
had invoked their right to silence, so their knowledge and hence
ability to inculpate or exculpate Guerrero was unknown. According
to the government, the aliens were release due to insufficiency of
evidence against them.

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Guerrero has not made a plausible showing that the missing
alien witnesses could have supported his defense. He has no
suggestion how their testimony could have contradicted his written
confession, or the fact that marijuana was placed in the Suburban,
the keys of which were in his possession. The government will be
penalized for deporting alien witnesses "only if there is a
reasonable likelihood that the testimony could have affected the
judgment of the trier of fact." Id. at 874, 102 S. Ct. 3450. In
this case, even if we would speculate that the aliens would deny
Guerrero's involvement, the reasonable likelihood is that Guerrero
would have been convicted on the basis of the other evidence. The
record does not support Guerrero's compulsory process and
confrontation rights claims.
IV
Guerrero finally complains that the district judge prejudiced
his trial by causing his written statement to be introduced into
evidence after the government rested its case-in-chief. On the
first morning of trial, Judge Kazen asked counsel outside the
presence of the jury if there were any objections to the exhibits.
Defense counsel objected to the introduction of the written
statement which he had previously moved to suppress, and Judge
Kazen noted that he had already found it admissible. During the
direct and cross-examinations of Agent Simmons, counsel for both
sides referred to the confession. After the government rested,
defense counsel moved for an acquittal, to which Judge Kazen
responded by noting that the confession established the elements of

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the offenses. Judge Kazen then asked whether the government had
formally admitted the document in evidence. The prosecutor thought
that it was in evidence, but Judge Kazen thought that it was not
admitted. The government promptly offered the document, and the
district court overruled defense counsel's objection that it should
not be admitted because the government had rested its case.
The reopening of a criminal case after the close of evidence
lies within the sound discretion of the district court. United
States v. Walker, 772 F.2d 1172, 1177 (5th Cir. 1985). "In
exercising its discretion, the court must consider the timeliness
of the motion, the character of the testimony, and the effect of
the granting of the motion." Id. (quoting United States v.
Thetford, 676 F.2d 170, 182 (5th Cir. 1982), cert. denied, 459 U.S.
1148 (1983)).
The formal admission of the document occurred immediately
after the government rested its case-in-chief. Guerrero was not
prejudiced by its late admission. The statement had obvious
probative value. Defense counsel had not objected when Agent
Simmons testified as to the contents of the statement, and defense
counsel referred to it during cross-examination. Apparently
defense counsel did not realize that the document was not in
evidence, as it was the court which raised this question. Guerrero
cannot maintain that the district judge's action somehow prejudiced
the jury, because the jury was excused from the courtroom and not
made aware of the court's involvement in allowing this exhibit to
be admitted. We find that the district court did not abuse its

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discretion in reopening the government's case to permit the formal
admission of the confession in evidence.
AFFIRMED.

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