                                                                   [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


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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.




                                          16
