United States v. Domenech, 585

• Decision Date: 12 April 1973
• Docket Number: No. 585,Docket 72-2258.,585
• Citation: 476 F.2d 1229
• Parties: UNITED STATES of America, Appellee, v. Angel DOMENECH, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

476 F.2d 1229 (1973)

UNITED STATES of America, Appellee, v. Angel DOMENECH, Appellant.

No. 585, Docket 72-2258.

United States Court of Appeals, Second Circuit.

Argued February 15, 1973.

Decided April 12, 1973.

Alfred Lawrence Toombs, New York City, for appellant.

John J. Kenney, Asst. U. S. Atty., S.D.N.Y. (Whitney North Seymour, Jr., U. S. Atty., John D. Gordan III, and John W. Nields, Jr., Asst. U. S. Attys., S.D. N.Y., of counsel), for appellee.

Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS,^* Judge.

DAVIS, Judge:

Appellant Angel Domenech was indicted, with co-defendants Morales and Pereira, for conspiring to distribute and possess with intent to distribute over 100 grams of heroin (count 1), and for the substantive offense of distributing and possessing the same amount of narcotics (count 2). Domenech was tried alone before a jury,¹ acquitted of conspiracy but convicted of the substantive offense. He was sentenced as a young adult offender (18 U.S.C. § 4209) to treatment and supervision under 18 U.S.C. § 5010(b) until discharged under 18 U.S.C. § 5017(c). On this appeal he does not challenge the sufficiency of the evidence which it is unnecessary to recite in detail. For present purposes, it is enough that there was proof that Domenech delivered in the presence of federal agents a wrapped package which turned out to contain heroin, and there was also evidence of prior separate discussions concerning a narcotics transaction between the agents and (i) Pereira and Domenech, (ii) Pereira and Morales, (iii) Pereira alone, and (iv) Domenech alone. Appellant and his wife presented exculpatory evidence to the effect that he knew nothing about any heroin transaction (he denied having had the conversations to which the agents had testified), he simply delivered the package on request as a favor, and thought it contained marijuana.

The first of the appeal points is that Pereira, appellant's brother-in-law, who was summoned by the defense, should have been compelled by the court to testify even though he made it clear when first called that he would claim his privilege against self-incrimination. The trial judge excused him without requiring any questions to be put. Pereira, whom appellant assumed would be a helpful witness (see note 3, infra), had shortly before pleaded guilty to the conspiracy count but had not yet been sentenced (see note 1, supra); the second (substantive offense) count was still outstanding against him but was fully expected to be dismissed upon sentencing. Appellant's contention is that the witness, having already pleaded guilty and been convicted, could no longer rely with justification on the Fifth Amendment privilege (cf. United States v. Gernie, 252 F.2d 664, 670 (2d Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073 (1958); United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957)), and should have been directed to testify.

We hold, however, that the court below committed no error in excusing Pereira. There is some doubt, in the first place, whether appellant is in a position to complain since his counsel neither asked the judge to direct Pereira to answer questions or to rule that the privilege was improperly asserted. Counsel appeared to acquiesce in Pereira's statement that he would not testify.

In any event, the claim of privilege was well-taken. Count 2 still remained open against Pereira and his testimony, whether or not it helped Domenech, could very well have further incriminated himself on that offense. Though it was very likely that count 2 would be dismissed, that had not yet occurred and Pereira can hardly be faulted for taking the most cautious position. Even on the conspiracy charge to which he had pleaded guilty, evidence compelled at Domenech's trial could well hamper a possible attempt by the witness to withdraw his plea before sentence. See State v. Tyson, 43 N.J. 411, 204 A.2d 864, 866-867 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). Moreover, under the existing precedents it was open to the State of New York to prosecute Pereira on the same heroin transaction (Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)), and his Fifth Amendment privilege included a right against self-incrimination under the state penal laws. See Kastigar v. United States, 406 U.S. 441, 456-457, 92 S. Ct. 1653, 32 L.Ed.2d 212 (1972); United States v. Chandler, 380 F.2d 993, 997 (2d Cir., 1967). In short, if Pereira had refused a direct order to testify, a contempt judgment against him could not be allowed to stand since in no way would it be perfectly clear that the answers would not possibly incriminate. Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Chandler, supra.

Appellant urges that the Government deliberately left count 2 open against Pereira in order to insure that he would not testify for appellant. There is no adequate proof of this charge; leaving the remaining counts open until sentence on the counts to which an accused has pled is the common practice—a reasonable procedure which avoids complexities where the defendant moves before sentence to set aside his guilty plea. In this instance the possible consequence of following the normal usage was to give Pereira a good excuse for refusing to take the stand, and thus of avoiding the dilemma, on the one hand, of a possible perjury charge or a feared impact on his sentence if he testified favorably to Domenech, or, on the other, of giving evidence against his close relative. But we see no escape from holding that Pereira had a constitutional right to act as he did, and, in the absence of any proof of deliberate manipulation or pre-arrangement by the United States Attorney, there is no penalty we can or should impose on the Government because the witness's exercise of his right, for his own purposes, may have redounded to the prosecutor's advantage.

The second issue is whether the court below erred in giving the "Allen" charge when the jury reported itself in disagreement after some hours of deliberation. This court has consistently and recently upheld normal versions of the "Allen" instruction (see, e. g., United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir., 1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 675, 30 L.Ed. 675 (1972); United States v. Bowles, 428 F.2d 592, 595 (2d Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970); United States v. Hynes, 424 F.2d 754 (2d Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970)) and we are of course bound by those rulings. There is no occasion to consider whether en banc reconsideration should now be had of this general area (see United States v....