United States v. Cisneros, 73-1987.

• Decision Date: 01 April 1974
• Docket Number: No. 73-1987.,73-1987.
• Citation: 491 F.2d 1068
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Rivas CISNEROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

491 F.2d 1068 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Rivas CISNEROS, Defendant-Appellant.

No. 73-1987.

United States Court of Appeals, Fifth Circuit.

April 1, 1974.

Alan Brown, Frederick J. Deyeso, Jr., San Antonio, Tex., for defendant-appellant.

William S. Sessions, U. S. Atty., Joel D. Conant, John M. Pinckney, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

Manuel Rivas Cisneros appeals from his conviction on one count of distributing approximately 4.48 grams of heroin in violation of 21 U.S.C. § 841(a) (1) (1970).¹ He argues that the trial court exceeded the scope of permissible comment on the evidence with certain remarks to the jury about the demeanor of the chief defense witness. He also argues that the court improperly instructed the jury on the use of evidence of a prior felony conviction.² We agree that the trial court committed prejudicial error on each point, and reverse the conviction.

I.

The principal evidence in support of the Government's case against appellant Cisneros came from Officer Jose C. Losoya of the San Antonio, Texas, Police Department, who at the time of the operative events in this case was working as an undercover narcotics officer. According to Officer Losoya, on October 10, 1972, he and an unidentified "cooperating individual"³ were attempting to make heroin buys in order to gather evidence against street pushers. At about noon appellant Cisneros approached the pair, and after initial introductions by the informant, agreed to make a sale to Officer Losoya, the exchange to take place an hour later at the same location. Thereafter Officer Losoya and the informant met one Victor Rodriguez Lopez, a/k/a "Chocolate," who also agreed to make a sale to Officer Losoya. Following a rather involved, and for the purposes of this appeal irrelevant, series of events, Victor Lopez, Officer Losoya, and the informant met Cisneros, and Lopez purchased a quantity of heroin from Cisneros using money he had received from Officer Losoya.

Officer Losoya testified that both the initial meeting with Cisneros and the later heroin sale took place in the immediate vicinity of a house on Vine Street, which later investigation revealed was owned by Cisneros' parents, though it was not the family residence. Officer Losoya also testified that at the time of the second meeting and sale Cisneros was driving as blue Impala, which subsequent investigation showed belonged to Rogelio Cisneros, appellant's father. Appellant stipulated that he had bought the automobile for his father on September 30, 1972, paying in cash and listing the Vine Street address on the title. Officer Losoya also said that he had seen both Cisneros and Victor Lopez "around the streets" prior to October, 10, 1972.

In response to this evidence defense counsel presented testimony from both Victor Lopez and appellant Cisneros. Lopez admitted his own drug addiction, and conceded that he had sold heroin to Officer Losoya on October 10, 1972, under circumstances substantially similar to those described by the officer.⁴ He strongly denied, however, that Cisneros had been in any way connected with the sale, insisting, as he did at his arraignment, that he had sold Officer Losoya part of his personal supply of heroin, from which he often made sales to other addicts to support his own habit. Lopez claimed that he had recognized Losoya's companion, a black known to him as Grande, as a possible informer, but said that he had never previously seen Officer Losoya.

Witness Lopez gave confusing testimony about his acquaintance with Cisneros prior to October 10, 1972. Because of the importance of this testimony to appellant's first point of error, we quote from the trial transcript at length.

On Direct Examination (Tr. at 61) :

MR. BROWN (for Cisneros) : Do you know this man here, Manuel Cisneros?

LOPEZ: I have seen him.

MR. BROWN: Where did you see him?

LOPEZ : I don\'t know. He might live in the neighborhood.

MR. BROWN: You have seen him around the neighborhood there?

MR. LOPEZ : Yeah.

MR. BROWN : Have you ever talked to him?

LOPEZ : No, not just like that.

On Cross-examination (Tr. at 79-80):

MR. PINCKNEY (for the United States) : And you stated that you had never met Mr. Cisneros, is that correct?

LOPEZ: Sir?

MR. PINCKNEY: You never until this day in this courtroom met Mr. Cisneros, is that correct?

LOPEZ : No, sir.

MR. PINCKNEY: You don\'t know Mr. Cisneros, you have never known him?

LOPEZ: Well, I have seen him like that, you know.

MR. PICKNEY: But I mean just in the Courtroom?

LOPEZ: Sir?

MR. PINCKNEY: You had never seen him on the streets, you had never met him or anything?

LOPEZ: No, sir.

Appellant Cisneros testified that though a frequent visitor in San Antonio, he had lived in Chicago with his wife and children for fifteen years. He said that on October 10, 1972, he was in San Antonio preparing to return to Chicago, and admitted that in August 1972 he had been arrested on a charge of possession of heroin with intent to distribute. He admitted being an addict, but denied that he had participated in any way in the events of October 10, 1972, described by Officer Losoya. He conceded that he had seen Mr. Lopez in the past, and insisted that he had never before seen Officer Losoya.

Because of the importance of the testimony relating to the pre-October 10 relationship between Cisneros and Lopez, we again quote at length from the trial transcript.

On Direct Examination (Tr. at 82) :

MR. BROWN (for Cisneros) : Now, had you ever seen this man Lopez before?

CISNEROS: I have seen him several times.

MR. BROWN : Around the neighborhood?

CISNEROS: Yes, sir.

MR. BROWN : Did you know him casually, to say hello to him or something?

CISNEROS: Yeah, I had seen him, I cannot say exactly. I have been away from San Antonio for approximately — well let\'s say fifteen years

. . . . .

On Cross-examination (Tr. at 91-92):

MR. PINCKNEY (for the United States) : . . . And you stated on Direct Examination you have never met Mr. Lopez?

CISNEROS: I have seen him before.

MR. PINCKNEY: Have you spoken to him around that area, around Clark and Vine the vicinity of the heroin sale?

CISNEROS : No —

MR. PINCKNEY: Well, where had you spoken to Mr. Lopez?

CISNEROS: Like I said, I have been away, and I haven\'t seen most of the people in San Antonio because I have been away so long.

MR. PINCKNEY: Did you know Mr. Lopez before you left San Antonio?

CISNEROS : I know Mr. Lopez, I can\'t say — well, no, sir, I did not know him before I left Chicago. Fifteen years ago I didn\'t know him.

MR. PINCKNEY : When do you remember speaking to him on the streets of San Antonio?

CISNEROS : I remember seeing Mr. Lopez I would say three years ago at the most.

MR. PINCKNEY: Three years ago?

CISNEROS : Yes, sir.

MR. PINCKNEY : You remember him, he does not recall you?

CISNEROS : Well, I don\'t know whether he recalls me but —

MR. PINCKNEY: But you remember seeing him?

CISNEROS : Yes, sir.

II.

We preface our analysis of appellant's two points of error with the recognition that in reviewing a trial judge's instructions and comments to the jury, we must evaluate "the charge as a whole, in its totality, without isolating statements which may appear prejudicial from the context in which they were made." United States v. Williams, 5 Cir.1973, 473 F.2d 507, 509; United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380, 386-387; United States v. Wilkinson, 5 Cir. 1972, 460 F.2d 725. Thus the dry, detached scrutiny of the appellate microscope must be tempered by the Supreme Court's admonition to "guard against the magnification on appeal of instances which were of little importance in their setting." Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680, 706.

Near the end of the instructions to the jury, the court made the following comment, the emphasized portions of which Cisneros claims interfered with his right to a fair trial.

Now, members of the jury, I often do not comment upon evidence presented but the rules of law in Federal Court permit some comments, and I am expressing no opinion, but I am saying to you very frankly that my opinion that somebody is lying in this case. Officer Losoya has given a detailed description of his actions on that day. He made a record of it that day of just what his actions were, and how this whole transaction took place. Now, he is corroborated in one detail by Lopez testifying for the defendant, that Lopez was in his car, but I ask you where, if any place, that Lopez said that Cisneros rode with either Lopez or talked to Officer Losoya. Lopez said that he didn\'t even know this man. You saw him in Court, you saw him on the stand, and you saw him leave. Perhaps something, significant happened, perhaps it didn\'t as he was leaving this Courtroom. Perhaps you noticed something that I noticed, perhaps you didn\'t. But nevertheless I am just saying that you can judge a person from his actions from the minute he came in the door until he goes out that door. And if any of you noticed anything significant, why, you may, remember and act on it. But we have the testimony of Cisneros who said "Yes, I saw that man around the neighborhood, but I never was in the car with that man that day, never had any Heroin, never got any money, he has to be lying — the Officer has to be lying," although he had no direct interest in the outcome of this case except for doing his duty. The defendant is vitally interested. You may draw a conclusion, you may reconcile those stories, if they are reconcilable. Or if not reconcilable take the one that you believe and act on it.

Tr. at 109-10, emphasis added

Appellant's challenge requires us to fit the facts of this case within a number of well-settled propositions broadly outlining the powers of a federal trial judge. The starting point for this difficult task is Quercia v....