430 F.3d 606 (2nd Cir. 2005), 02-1543, United States v. Estrada

Docket Nº:02-1543-CR(L), 02-1545-CR(XAP), 02-1626-CR(CON).
Citation:430 F.3d 606
Party Name:UNITED STATES of America, Appellee, v. Frank ESTRADA, also known as "The Terminator," also known as "Big Dog," also known as Frankie Estrada, also known as "Mustard"; Edward Estrada, also known as "French Fry," also known as "Fry"; Isaias Soler, also known as "Eso"; Nelson Carrasquillo; William Rodriguez, also known as Billy Rodriguez, also known a
Case Date:November 29, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 606

430 F.3d 606 (2nd Cir. 2005)

UNITED STATES of America, Appellee,

v.

Frank ESTRADA, also known as "The Terminator," also known as "Big Dog," also known as Frankie Estrada, also known as "Mustard"; Edward Estrada, also known as "French Fry," also known as "Fry"; Isaias Soler, also known as "Eso"; Nelson Carrasquillo; William Rodriguez, also known as Billy Rodriguez, also known as William Gomez, also known as "Billy the Kid"; Charles DeJesus, also known as "Chino"; Eddie Lawhorn, also known as "Fat Boy"; Yamarr Shipman, also known as "Country," also known as "Mar"; Michael Hilliard, also known as "Mizzy"; Rosario Cotto, also known as "Sato"; Pablito Cotto; Benito Rosario; Jermaine Jenkins, also known as "Fats"; Makene Jacobs, also known as "Madee"; Joseph Butler, also known as "Pee Wee"; Viviana Jiminez; Kelvin Vereen, also known as "Nino"; Daniel Herredia, also known as D-Nice; Felipe Santana, also known as "Omar Soto"; Tamarius Maner, also known as "Trigger"; Gloria Vargas; Hector Cruz, also known as "Casper"; Hector Gonzalez, also known as "June Bug"; Enrique Martinez, also known as Ricky Zapata; Carmen Cotto, also known as "CC," Defendants,

Felix DeJesus, also known as "Dino," Ricardo Rosario, also known as "Q," Defendants-Appellants.

Nos. 02-1543-CR(L), 02-1545-CR(XAP), 02-1626-CR(CON).

United States Court of Appeals, Second Circuit.

November 29, 2005

Argued: September 19, 2005

Defendants-appellants appeal from judgments of conviction and sentence for conspiring to possess with intent to distribute 1000 grams of heroin and 50 grams of crack cocaine, and 1000 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. We hold that the statement by a defendant in response to a police question before he was read his Miranda rights - that he had a gun in his jacket - falls within the public safety exception to the Miranda warning requirements. We also hold that a district court's policy of not permitting impeachment of witnesses with the statutory names of a witness's offenses of conviction violates Fed.R.Evid. 609(a)(1) but that the error was harmless in this case.

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DAN E. LaBELLE, Halloran & Sage, LLP, Westport, CT, for Defendant-Appellant Felix DeJesus.

Page 608

ROBERT J. SULLIVAN, Westport, CT, for Defendant-Appellant Ricardo Rosario.

ALEX HERNANDEZ, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney for the District of Connecticut, Alina P. Marquez, Jeffrey A. Meyer, Assistant United States Attorneys, on the brief), Bridgeport, CT, for Appellee.

Before: WINTER, SOTOMAYOR, WESLEY, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Defendants-appellants Felix DeJesus and Ricardo Rosario appeal from judgments entered on September 11, 2002, and October 4, 2002, respectively, in the District Court for the District of Connecticut (Underhill, J.) sentencing DeJesus principally to two concurrent terms of 360 months' imprisonment and Rosario to 240 months' imprisonment. Appellants were convicted after a jury trial of conspiring to possess with intent to distribute, respectively, 1000 grams of heroin and 50 grams of crack cocaine, and 1000 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. In a concurrently filed summary order, we address appellants' challenges to the district court's rulings on a motion to suppress, a number of evidentiary issues, including limitations on cross-examination of cooperating witnesses, a motion under Fed. R. Crim. P. 29, and application of the Sentencing Guidelines. Here, we hold that the public safety exception to the Miranda rule rendered admissible DeJesus's statement that he had a gun in his jacket, made at the time of his arrest in response to a police question that preceded the Miranda warnings. We also hold that a district court's policy of not permitting impeachment of witnesses with the statutory names of a witness's offenses of conviction violates Fed.R.Evid. 609(a)(1) but that the error was harmless in this case.

BACKGROUND

We recite only the facts pertinent to the issues addressed in this opinion.

I. Motion to Suppress

Before trial, DeJesus moved to suppress as the product of an illegal custodial interrogation statements made in his apartment at the time of his arrest on February 5, 1997, before the arresting officers gave him his Miranda warnings, and the gun and narcotics that were seized at that time as a result of the statements. The district court held a suppression hearing on August 21, 2001, and subsequently made the following findings of fact.

On February 5, 1997, a five-member team of the Connecticut Fugitive Task Force executed an arrest warrant for DeJesus at an apartment in Bridgeport, Connecticut. The warrant had been issued in connection with two probation violations, and the team was aware of DeJesus's criminal record, which included two assault convictions. DeJesus was already lying face-down on the floor when Sergeant Juan Gonzalez, one of the arresting officers, first saw him. As Gonzalez was standing over and attempting to handcuff him, DeJesus said, in substance, "she's got nothing to do with this" and "I have a gun" or "I got a gun in my pocket," gesturing with his face toward a jacket on a chair. Having handcuffed DeJesus, Gonzalez found a gun and a quantity of heroin in the jacket pocket.

At the conclusion of the suppression hearing, the district court denied DeJesus's motion, finding that the evidence had been seized pursuant to a valid search incident to a lawful arrest. The district court did not, however, address DeJesus's claim that the statements indicating the location of the gun should be suppressed pursuant to Miranda, instead treating the

Page 609

motion as having raised only a Fourth Amendment claim.

On appeal, the government concedes that DeJesus's statement to Gonzales was made in response to questions posed by another officer without Miranda warnings. The government adopts the testimony of Special Agent Randy Jarvis at the suppression hearing that another officer asked DeJesus, without having given Miranda warnings, whether there were any weapons in the apartment.

II. The Impeachment Rulings

At trial, the government called a number of cooperating witnesses. When defense counsel first proposed impeaching cooperator Jose Lugo with a burglary conviction, the district court judge explained his "general approach," stating that, for "a conviction that goes to credibility, conviction for fraud, that type of thing, then you can bring out the nature of the conviction. If it's simply a felony conviction, the fact of the conviction is I think what you bring out." The district court reasoned that "[t]he fact that it was burglary doesn't seem to have any independent relevance," and therefore limited cross examination on Lugo's burglary conviction to the fact of an unnamed felony conviction. Considering witness Ismael Padilla's larceny convictions, the district court judge indicated that whether larceny is crimen falsi depends on the underlying facts and permitted extended in camera questioning of the witness about his larceny convictions. At the conclusion of this examination, the district court judge stated that he had not "heard an argument for the probative value here unless it is a crime of falsity or deceit that [] goes to . . . untruthfulness." The district court judge then indicated that, for crimes not bearing directly on veracity, "it's the fact and presumably the date, if you want to get it in, that goes to credibility, and the credibility of the witness is not further attacked if it's, you know, Crime A versus Crime B." He explained that he was not "aware of any judge in this district that lets in the nature of the conviction rather [than] simply the fact and the date."

The court then demonstrated the kind of questions defense counsel could pose: "In June 1992, you were convicted of a felony, right? And in October 1993, you were convicted of another felony." The district court judge reiterated that his approach was "consistent with practice in this district." The district court applied the same analysis to cooperator William Rodriguez's felony drug convictions and his murder conviction, finding none of these convictions to bear on truthfulness. Finally, following extended in camera questioning of witness Joseph Butler, the district court found that Butler's robbery, escape, and manslaughter convictions did not "go to the question of truthfulness or veracity" and limited impeachment for each offense to the fact of an unnamed felony conviction and its date.

DISCUSSION

I. Public Safety Exception

The district court denied DeJesus's motion to suppress statements and physical evidence, challenged as the product of an illegal custodial interrogation, on the sole ground that the physical evidence was seized pursuant to a valid search incident to a lawful arrest. The district court thus treated DeJesus's motion as stating only a Fourth Amendment claim and did not consider the Fifth Amendment argument raised by DeJesus that the physical evidence was the product of a custodial interrogation not preceded by Miranda warnings. However, "we may affirm the denial of the suppression motion on any basis for which there is a record sufficient

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to permit conclusions of law, including grounds upon which the district court did not rely." United States v. Tropiano, 50 F.3d 157, 161 (2d Cir. 1995) (citation and internal quotation marks omitted). To the extent that the government addresses DeJesus 's Miranda claim on appeal, it does not dispute that the officers questioned DeJesus within the meaning of Miranda before informing him of his rights, but argues that DeJesus's pre-Miranda statements were admissible under the "public safety" exception to the Miranda rule. Where the public safety exception applies, a defendant's statement - and the physical evidence recovered as a result of...

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