United States v. Hoker, 73-1810 Summary Calendar.

• Decision Date: 11 October 1973
• Docket Number: No. 73-1810 Summary Calendar.,73-1810 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Frederick HOKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 359 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Frederick HOKER, Defendant-Appellant.

No. 73-1810 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

August 8, 1973.

Rehearing Denied October 11, 1973.

J. E. Tatum, Houston, Tex. for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before, JOHN R. BROWN, Chief Judge, DYER and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Hoker appeals from his conviction and sentence after guilty verdicts in a jury trial for two violations of the Controlled Substances Act: Count One for knowingly and intentionally possessing a controlled substance under Schedule I, 446 pounds of marijuana with intent to distribute¹ on September 16, 1972, and Count Two for knowingly and intentionally importing into the United States from Mexico a controlled substance under Schedule I (the same 446 pounds of marijuana).² The appellant, a 20 year old male with no prior criminal convictions, but with a juvenile record of probation, was sentenced to four years confinement and a $2500 fine, with a special parol term of two years to follow, as to Count One. A suspended five year confinement sentence, followed by a two year term on special parole was imposed as to Count Two. We reverse because the trial judge took over the prosecution to an extent preventing a fair trial.

In essential particulars this case is governed by our decision in United States v. Lanham, 5 Cir. 1969, 416 F.2d 1140. Lanham involved a charge under the Dyer Act, Title 18 U.S.C. Section 2312, of interstate transportation into Texas of a stolen Volkswagen which had disappeared without the owner's knowledge or consent from the French Quarter in New Orleans, Louisiana.

Proof of the defendant's possession of the stolen car was based on its being found on a parking lot in Houston a day or so after it vanished in New Orleans. Lanham and a co-defendant, Larson, were arrested shortly thereafter in a white Volkswagen in Terrell County, Texas. The white VW in turn had been stolen from the Houston parking lot where the red VW was found. At Lanham's separate trial both he and Larson testified that they had hitch-hiked to Houston in a black Ford with a Mr. Wilson, and were also hitch-hikers in the white VW. They disclaimed connection with the red VW.

We reversed because the "trial judge improperly injected himself into the trial below in such manner and to such extent as to deny the appellant a fair and impartial trial," citing specifically Gomila v. United States, 5 Cir. 1944, 146 F.2d 372; Hunter v. United States, 5 Cir. 1932, 62 F.2d 217, and Adler v. United States, 5 Cir. 1910, 182 F. 464; and generally 23 C.J.S. Criminal Law § 987, p. 996; Bollenbach v. United States, 1946, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350, 354; Starr v. United States, 1894, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841; United States v. Link, 3 Cir. 1953, 202 F.2d 592.

The extent to which the trial judge took over the prosecution in Lanham was shown by actual count of the questions asked Larson and Lanham³ by defense counsel, prosecutor, and judge.

Despite court-appointed counsel's failure to object in Lanham, we found that "plain error", Rule 52(a), F.R.Crim.P. had occurred and reversed saying:

"* * * The impartial trial atmosphere, the `cold neutrality of an impartial judge\', the defendant Lanham\'s credibility, his presumption of innocence, and any chance whether guilty or innocent, that he had of a successful defense, all were demolished, along with his Fifth Amendment right not to be deprived of his liberty without due process of law." * * *

The situation here presents a close parallel to Lanham with the addition that, as noted infra, defense counsel twice preserved the point by objection to the court's examination.

Hoker was stopped for inspection at the International Bridge in Laredo, Texas on September 16, 1972 travelling in a 1955 green Chevrolet pick-up truck with Texas plates. The Quarantine Inspector who initially halted Hoker called in U.S. Customs Inspector McManus, who advised him of his Miranda rights. At that point, Hoker said, according to the agent present, "Inspector, you are going to search my vehicle. If you find any hard stuff in that vehicle will it go harder with me than if they just find plain weed in it?". The truck contained six concealed compartments under its fenders and body, from which the 446 pounds of marijuana were removed.

The appellant denied knowledge of the presence of the marijuana in the truck, both to Customs agents and at trial. His defense was that a chance acquaintance in a bar in Nuevo Laredo on the Mexican side offered him two hundred dollars to drive the truck to Houston. As his funds were low and he had no job, he accepted the offer.⁴

Whether Hoker's constructive possession of the marijuana was knowing and intentional with intent to distribute was the key issue before the jury as to Count One. His possession, since he was alone and driving the truck, was not subject to dispute. As to Count Two, the importation count, inasmuch as he was seen driving the truck across the International Bridge and was in sole control of the truck, the central jury issue was whether or not the importation of the marijuana from Mexico was done knowingly and intentionally. Hoker's credibility and the reasonableness of his testimony were thus pivotal to his attempt to defend against both charges. Guilty knowledge and intent were the only issues present.

Following 70 questions to Hoker by his counsel and 238 questions on detailed and tortuous cross-examination by the prosecuting attorney, the trial judge entered the fray with 79 searching questions of his own, in addition to seven or eight clarifying questions from the court during the government's cross-examination. Midway in this examination, Hoker's counsel objected, and was summarily overruled.⁵

The only witnesses called by the defense, all of whom appeared on the stand before he did, were Hoker's mother, Manual Martinez, who testified as to his former ownership of the truck and its sale to a man named Sam Perez, and Miss Garcia, a customs employee who had had custody of the truck and its parts. Mrs. Hoker corroborated her son's testimony as to his age, his employment since finishing high school, and the fact that he had left Houston on September 15, 1972 as a hitch-hiker. Her testimony preceded that of the appellant.

After the defense rested, the government proceeded to call two rebuttal witnesses,⁶ the principal one being the night clerk of the El Rio Motel in Nuevo Laredo, where Hoker had testified he was registered in Room 128 on September 14, and again on September 15. This witness, Adolfo Fonseca, had some language difficulties. He testified in part without an interpreter and in part through an interpreter. He produced first a daily combined registration record from the motel which failed to show Hoker registered in Room 128 on September 14 at all. It was registered to Miguel Rascon. Hal Sparks of Houston was in Room 132, and several other young men were in adjoining rooms, all from Houston. Neither was the appellant registered for the 15th.⁷

When Fonseca's examination ended, the prosecuting attorney, still on rebuttal, called the appellant as a witness "for further cross-examination." Permission for this procedure was not sought and its propriety was not questioned by the court or by defense counsel. 67 questions were put to the appellant by the prosecutor, probing the discrepancies between Hoker's original testimony and that of Fonseca, and establishing appellant's prior acquaintance with Sparks and his arrival at the motel with Sparks, among other matters. The trial judge again took over the inquisition for 47 questions before defense counsel interposed an unavailing objection. The objection and the ruling are set forth in the margin along with the court's examination.⁸

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Following the objection, the court's examination of Hoker proceeded for another 27 questions as set forth in the margin.⁹ Six questions by the prosecutor followed and Hoker's counsel was then permitted to attempt his rehabilitation in "redirect examination" consisting of 21 questions. The appellant related that he and Sparks were both Jehovah's Witnesses, acquainted through church activities, and that since Sparks was in no way involved in the marijuana offenses, he was reluctant to bring Sparks' name into his earlier testimony. At this point the jury was excused and the trial judge afforded defense counsel an opportunity to expand his objections:

"THE COURT:

Now you may take any exceptions you wish to my interrogating the witness.

MR. TATUM (defense counsel):

I have nothing for the record, and I want the court to know that I have no disrespect, but it is a tremendous disadvantage to the defendant when there is no opportunity to make objections.

THE COURT:

I think you know that you have objections. I tried to ask innocuous questions.

MR. TATUM:

I do want to place a standing objection to continued interrogation by the court to which the defense may not have ample opportunity to object. We feel that it does bias the jury and there is no cure for it. Respectfully submitted." (Emphasis added)

The brief of the United States, at page 5, in comparing this case with Lanham, asserts: "In the case at bar, the court asked Hoker only 51 questions as opposed to the 94 asked by defense counsel and 313 asked by the prosecutor. No other witness was examined by the court and the court called no witnesses of its own."

This statement is incorrect in every particular save its assertion that the court called no witnesses of its own. The number of questions of the appellant asked by the court was 153, by our count, not 51, although there may be some mis-attribution by the court reporter.¹⁰ The tenor of the court's questions rather than...