Government of the Canal Zone v. P. (Pinto)

• Decision Date: 08 March 1979
• Docket Number: 78-5103,Nos. 78-5102,s. 78-5102
• Citation: 590 F.2d 1344
• Parties: 4 Fed. R. Evid. Serv. 15 GOVERNMENT OF The CANAL ZONE, Plaintiff-Appellee, v. Ruben Antonio Yanez P. (PINTO), Defendant-Appellant. GOVERNMENT OF The CANAL ZONE, Plaintiff-Appellee, v. David Rouse U. (UWEIL), Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1344

590 F.2d 1344

4 Fed. R. Evid. Serv. 15

GOVERNMENT OF The CANAL ZONE, Plaintiff-Appellee, v. Ruben Antonio Yanez P. (PINTO), Defendant-Appellant.

GOVERNMENT OF The CANAL ZONE, Plaintiff-Appellee, v. David Rouse U. (UWEIL), Defendant-Appellant.

Nos. 78-5102, 78-5103.

United States Court of Appeals, Fifth Circuit.

March 8, 1979.

Roger I. Dallam (Court Appointed) Gretna, La., for defendant-appellant in No. 78-5102.

Frank J. Violanti, U. S. Atty., Wallace D. Baldwin, Asst. U. S. Atty., Balboa, Canal Zone, for plaintiff-appellee.

Edna Sakir Morgan, Court Appointed, New Orleans, La., for defendant-appellant in No. 78-5103.

Appeals from the United States District Court for the District of the Canal Zone.

Before WISDOM, GODBOLD and TJOFLAT, Circuit Judges.

WISDOM, Circuit Judge:

R. A. Yanez P. (Pinto) and D. Rouse U. (Uweil), the defendant-appellants, were convicted of assault with intent to rob. The evidence identifying them as the assailants consisted in part of hearsay statements made by the two victims at a preliminary hearing. These statements were introduced under the Canal Zone codal provisions regulating the use of deposition testimony of absent witnesses. Because the government made no showing that it was unable to procure the attendance of the declarants to testify at trial, the prosecution's use of this testimony violated sections 3507 and 4301 of the Canal Zone Code and Rule 804 of the Federal Rules of Evidence. The testimony affected substantial rights of the defendants; it was unreliable and prejudicial. The admission of the depositions into evidence was, therefore, plain error. We reverse.

I.

Between 3:00 and 4:00 in the afternoon on November 6, 1977, Vincent Molineaux and his father-in-law, Joseph Segolo, were assaulted while strolling with their wives on the Fourth of July Avenue in the Canal Zone. Police officers Grimaldi and Burch, who were patrolling the street, immediately arrested the defendant Yanez. On November 7, the day after Yanez's arrest, a preliminary hearing was held before a magistrate. At that time Rouse was still at large. The two victims were scheduled to sail that day. The prosecution, therefore, deposed them on the authority of the Canal Zone Code of Criminal Procedure, which permits the government to examine and perpetuate the testimony of any witness who is "about to leave the Canal Zone". 6 C.Z.C. § 4293. The two witnesses testified in English; a summary of their testimony was communicated to Yanez in Spanish at the end of the proceedings.

Mr. Molineaux testified that he was walking down the Fourth of July Avenue when he felt someone place a hand in his pocket. As he tried to shake the hand away, he saw a man, the defendant Yanez, and, at the same moment, realized that his father-in-law was on the ground. He then saw the defendant and another man running across the street. Mr. Segolo testified next. He stated that he was walking behind his son-in-law when he saw the defendant try to grab a camera slung across Mr. Molineaux's shoulder. Mr. Segolo said that he tried to assist his son-in-law, but the defendant caught him around the neck and pushed him to the ground. When he got up, he saw that the police had caught the defendant.

Yanez was represented at the examination by an attorney appointed fifteen minutes before the hearing began. On cross-examination, his attorney elicited the information that Mr. Molineaux did not actually see Yanez push his father-in-law. Indeed, he never saw Yanez's face; the defendant's back was to the victim at all times until Yanez crossed the street and was arrested by the police. Mr. Segolo acknowledged on cross-examination that he was flung to the ground from behind; hence, the man he saw grab the camera could not have been his assailant. Moreover, he, too, did not see Yanez's face; he identified Yanez because he recognized him as the man who was later arrested by the police.

The second defendant, Rouse, was arrested ten days after this hearing took place. Through his court-appointed attorney, Rouse waived a preliminary examination. Sometime before trial, the depositions of Molineaux and Segolo were summarized for him.

On January 9, 1978, Yanez and Rouse, jointly represented by a second court-appointed attorney, were tried before a judge for assault with intent to commit robbery in violation of Section 337 of title 6 of the Canal Zone Code. The prosecution, explaining to the court the circumstances of the taking of the depositions of the two victims at the preliminary hearing, moved to introduce their testimony into evidence on the authority of sections 3507 and 4301 of the Canal Zone Code, which govern the use of deposition testimony at trial. The defense made no objection and the depositions were read into the record.

The prosecution's case was also based on the live testimony of Officers Grimaldi and Burch. Office Grimaldi stated that he had seen both defendants talking together immediately before he spotted a group of tourists headed in the direction of the defendants. He and Officer Burch radioed to other units to place the defendants under surveillance, then drove to the end of the street and headed back towards the group. As they drove back, Grimaldi stated, he saw Rouse place a hand in Mr. Molineaux's pocket. Yanez grabbed the camera and struggled with Mr. Segolo. The assailants then headed towards Panama City, which is across the Fourth of July Avenue. Yanez was arrested while walking down the avenue; Rouse, however, escaped into the Republic of Panama. Officer Burch corroborated this testimony.

The defendants denied that they had committed the assault. Yanez stated that he was near the tourists when the assault took place but insisted that he did not participate in the crime. He asserted, for what it is worth, that Mrs. Molineaux and Mrs. Segolo had exonerated him at the scene of the offense and at the police station. The officers denied this. Rouse admitted that he was with Yanez earlier but said that he was never near the group.

The defense theory was that the two men were known to the police and marked as likely law offenders before the offense occurred. The defense postulated that the officers could not have seen exactly who assaulted the tourists but assumed that it must have been the defendants. Indeed, on cross-examination the defense established that the officers were about a hundred feet away from the group when, according to their testimony, they saw Rouse place a hand in Mr. Molineaux's pocket. Moreover, both officers acknowledged that they "knew" it was Yanez who pushed Mr. Segolo to the ground only because they saw Mr. Segolo grab him later.

The trial judge rejected the defense theory, stating that the identification testimony of the two victims, who had no previous connection with the defendants, was determinative. Yanez and Rouse were convicted and sentenced to six years at hard labor. Both defendants appeal, represented by a new set of attorneys. They contend that the Canal Zone codal provisions regulating the use of deposition testimony at trial are unconstitutional and that their right of confrontation was violated by the introduction into evidence of the preliminary hearing testimony of the two victims. We do not decide the constitutional issues. We hold that the testimony was admitted into evidence in violation of the Canal Zone Code and federal evidentiary law.

II.

Statements made at a preliminary hearing are treated as hearsay by the Federal Rules of Evidence, in force in the Canal Zone. ¹ Rule 804(b)(1) (1975). ² Although preliminary hearing testimony is not characterized by the substantial risks that are present in most hearsay statements because the testimony is given under oath, subject to the penalty for perjury and the test of cross-examination, it lacks an important dimension of live evidence. The demeanor of a witness is "wordless language". Broadcast Music, Inc. v. Havana Madrid Restaurant Corp., 2 Cir. 1949, 175 F.2d 77, 80. The draftsmen of the Federal Rules of Evidence, therefore, deliberately placed former testimony in the category of exceptions to the hearsay rule conditioned on unavailability of the declarant. "(O)pportunity to observe demeanor is what in large measure confers depth and meaning upon oath and cross-examination . . . (T)he tradition, founded in experience, uniformly favors production of the witness if he is available". Advisory Committee Notes, Rule 804 (1975). See also United States v. Mathis, 5 Cir. 1977, 559 F.2d 294, 298-99; United States v. Lynch, 1974, 163 U.S.App.D.C. 6, 499 F.2d 1011, 1022-1025. Thus, "former testimony" is admissible into evidence under the Federal Rules only upon a showing by the proponent of the statement that he has been "unable to procure the attendance" of the declarant "by process or other reasonable means". Rule 804(a)(5). ³ Because the prosecution concedes that it made no effort at all to secure the return of Molineaux and Segolo to the Canal Zone for the trial, the former testimony of the two witnesses was inadmissible under the Federal Rules of Evidence.

Hearsay, inadmissible under the Federal Rules, may be introduced into evidence, nevertheless, if it qualifies under special statutory exceptions enacted by Congress. Federal Rules of Evidence, Rule 802 (1975). ⁴ Like Rule 15 of the Federal Rules of Criminal Procedure, which governs the admissibility of depositions in the federal courts, two Canal Zone codal provisions specifically regulate the use of depositions and former testimony at trial. But unlike Rule 15, the Canal Zone provisions do not adopt the definition of unavailability found in Rule 804(a) of the Federal Rules of Evidence. Section 3507 of the Canal Zone Code of Criminal Procedure permits the government to introduce the deposition of a witness who was examined at a preliminary hearing "upon its being satisfactorily shown to the court that he is dead or insane or Cannot with due diligence be found within...