534 F.2d 616 (5th Cir. 1976), 75-2298, United States v. Sisto

Docket Nº:75-2298.
Citation:534 F.2d 616
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Anthony SISTO, Defendant-Appellant.
Case Date:July 01, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 616

534 F.2d 616 (5th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Anthony SISTO, Defendant-Appellant.

No. 75-2298.

United States Court of Appeals, Fifth Circuit

July 1, 1976

Page 617

Theodore J. Sakowitz, Federal Public Defender, Michael J. Rosen, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

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

GOLDBERG, Circuit Judge:

Appellant John Anthony Sisto was convicted by a jury on charges relating to his attempt to bring a bottle of liquefied cocaine through United States Customs. Because we find that the trial court plainly erred in failing to caution the jury about the testimony of a key witness, we must reverse and remand for a new trial.

I. The Trial.

Sisto was tried on one count of importing a controlled narcotic substance, 21 U.S.C.

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§§ 952(a), 960(a)(1), and one count of possession with intent to distribute a controlled narcotic substance, 18 U.S.C. § 841(a)(1). He was declared indigent, and a federal public defender was appointed to represent him. Sisto pled not guilty. Since the disposition of this appeal turns on a careful scrutiny of the effect of an error in the trial, we will review the testimony and arguments in this short trial in some detail.

The Government's first witness, a Miami Customs inspector, testified about his encounter with Sisto on February 10, 1975. Sisto was entering Miami from Cali, Colombia. According to the inspector, Sisto upon routine questioning gave his correct name and said that he had visited Colombia on a pleasure trip for two or three days. Among a few other items, Sisto attempted to declare as an overseas purchase a liquor bottle which appeared to the inspector to have been tampered with. A preliminary test indicated that the bottle contained liquefied cocaine. The inspector then arrested Sisto and notified the Drug Enforcement Administration.

D.E.A. Agent Putsche next testified that after Sisto had been read his Miranda, rights, Sisto volunteered the statement that he had purchased the liquor bottle for $5.00 from a liquor store in Colombia, and that he did not know that the bottle contained cocaine. A D.E.A. chemist testified that the bottle indeed contained cocaine, in an amount of about 11,000 "hits" (dosage units), with a value of between $12,000 and $40,000. After these three witnesses, the Government rested its case.

Peter Shatney was the first witness for the defense. Shatney testified that he and Sisto, who had occasionally worked for Shatney in Shatney's rug cleaning business, had gone together to Colombia with the intention of purchasing leather goods and other such imports with which they could start a business. The trip was shorter than expected, Shatney said, because he and Sisto were robbed while in Cali, Colombia. Shatney recounted that he was with Sisto almost continuously while they were in Colombia. Just before their departure for Miami from the Cali airport, Shatney said, he had left Sisto for five minutes and upon his return saw Sisto conversing with a long-haired young man, who walked away as Shatney approached. Shatney testified that Sisto then had a liquor bottle which he had not had before, and that Sisto told Shatney that the stranger had asked Sisto to carry the bottle through Customs since the stranger "already had a couple of them." 1 Shatney said he saw the stranger again in the Miami airport.

On cross-examination, Shatney denied that he had ever told anyone that the purpose of his trip to Colombia was to buy cocaine, to liquidize it and to bring it back into this country in a liquor bottle. 2 He admitted having been introduced by his brother-in-law to a man named Chuck. The following colloquy then took place between the prosecutrix (Q.) and Shatney (A.):

Q. Do you remember on or about the 4th day of March, 1975, telling Chuck that you went with Mr. Sisto to help him in operation (sic), that you liquidized this cocaine, that he brought it in for you, although it was his cocaine, that you helped him pour it into the bottle, that . . . 3

Mr. Shatney, do you remember telling Chuck that you all went to

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A. No, ma'am.

Q. Did you tell him (Chuck) that the only reason Mr. Sisto got caught was because he did not listen to you?

A. No, ma'am.

Q. Do you remember telling him that you told Mr. Sisto, number one, that he should stay in Colombia longer, that two days is not sufficient, he has to stay at least a week to avert suspicion. Do you remember telling him that?

A. No, ma'am.

Q. Do you remember telling Chuck, as a matter of fact, Mr. Sisto got caught because he looked nervous and had beads of sweat on his forehead?

A. No, Ma'am.

Q. Do you remember telling him that it took a couple of bottles before it was good enough, the seal was good enough, before you would try to bring it into the country?

A. No, ma'am.

Q. Let me ask you this question. Do you not remember this, or are you stating to this Court that you did not say these things?

A. I did not say those things.

Q. Are you telling this Court that you did not go down for the purpose of bringing back liquid cocaine?

A. Excuse me.

Q. Are you telling that you did not go down to Colombia with Mr. Sisto for the purpose of bringing back liquid cocaine?

A. Yes, ma'am.

Q. Are you saying that you never told Chuck that you had done this before and that you now get other people to carry it into the country for you, you never carry it yourself?

A. No, ma'am. I did not say that.

The defendant then took the stand in his own behalf and related that he had received the liquor bottle in question from a stranger in the Cali airport. During the course of a casual conversation, said Sisto, the stranger had "told me he was bringing four bottles of whiskey home and asked me if I would be kind enough to carry one for him." Sisto testified that he agreed to do so, noticed nothing unusual about the bottle, and put it in his suitcase. Sisto in effect conceded that the testimony of the Customs inspector and the D.E.A. Agent was accurate, but maintained that he blurted out the false "liquor store" story only because of his extreme fear and confusion during the gruelling strip search and interrogation he was undergoing.

On cross-examination, Sisto admitted that he had been out of work for three months, and characterized the purpose of his trip with Shatney to Colombia as "pleasure with an inclination toward business" i. e., they hoped to purchase at least enough wood carvings and similar items for resale to recoup the cost of the trip. As to what arrangements he had made with the long-haired stranger for returning the liquor bottle in Miami, Sisto could remember nothing more specific than the stranger's statement, "I will see you later . . . outside of the Miami airport."

The Government then called as a rebuttal witness Agent Clifford Best of the D.E.A., a/k/a "Chuck." Best testified that while working undercover he had had a conversation with defense witness Shatney on March 4, 1975, almost a month after Sisto's arrest. Best said he posed as a potential purchaser of Shatney's South American cocaine connection, and that the subject of Sisto came up as follows:

As we were talking about how to go to South America and how I would pay him and how we would arrange to meet the connection and how we would smuggle cocaine back, he made the comment that he had a fool-proof way of smuggling it back, that it had never failed him and that was in liquor bottles. At this time I stated to Shatney the information and told him it wasn't fool-proof, that he had had an occasion where somebody had been caught. I mentioned the name of John to Shatney that this guy John got caught recently and Shatney then proceeded to tell me how John got caught and had he followed his instructions,

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Shatney's instructions, he wouldn't ever got caught.

At this point the defense objected and a bench conference out of the hearing of the jury was conducted. The objection was apparently grounded on lack of relevancy and on the argument that the testimony that "Sisto got caught makes it a story of conviction." The court responded: "How about their right to present evidence to challenge the credibility of a defendant witness who was called and testified to the contrary?" The defense acknowledged that some such impeachment might be proper, but argued that it was going beyond its proper scope. The objection was overruled.

Back before the jury, the trial judge himself asked Best, "Did he (Shatney) tell you what was the purpose for Mr. Sisto and himself going to Colombia?," and Best responded as follows:

Yes, he told me that he had made arrangements for he and Sisto to go to Colombia, he had made the arrangements, Shatney, that is, to meet his source for cocaine. That he had been there when they purchased the cocaine, that he had poured the liquor out of a whiskey bottle and replaced it with distilled water and then put cocaine into it and that this was Sisto's bottle.

Asked whether Shatney told him why Sisto got caught, Best answered:

Yes. He told me Sisto did not take the trip, that was his way of phrasing it, that he had told him to. He said that in other words to smuggle, you have to appear either as a businessman or as a tourist and Sisto did not do this. That Sisto didn't follow his instructions and stay approximately a week, he only stayed a couple days in South America. He told me that Sisto failed to bring back with him other dutiable merchandise that would divert the attention of the Customs Inspector and when he got to Customs he simply had one bottle of...

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