U.S. v. Gonzales

• Decision Date: 21 December 1984
• Docket Number: No. 83-3132,83-3132
• Citation: 749 F.2d 1329
• Parties: 17 Fed. R. Evid. Serv. 649 UNITED STATES of America, Plaintiff-Appellee, v. Esteban Leon GONZALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1329

749 F.2d 1329

17 Fed. R. Evid. Serv. 649

UNITED STATES of America, Plaintiff-Appellee, v. Esteban Leon GONZALES, Defendant-Appellant.

No. 83-3132.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1984.

Decided Dec. 21, 1984.

Karen Skrivseth, Dept. of Justice, Washington, D.C., for defendant-appellant.

Robert A. Goffredi, Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of oregon.

Before SKOPIL, FARRIS and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Eduardo Patino, a/k/a Leo Ribera, was convicted of robbing a Portland bank. Patino's codefendant, appellant Esteban Gonzales, was convicted of receiving stolen money and being an accessory after the fact to Patino's robbery. Appellant claims that the trial court erred in denying his motions for separate trials and in refusing to make a pretrial determination of the voluntariness of his waiver of Miranda rights. Appellant also claims that the trial court erred in limiting the scope of cross-examination and impeachment of a police officer who questioned him and in denying his motions to suppress certain physical evidence and statements. We affirm the trial court.

I FACTS

At 11:30 a.m. on April 7, 1983, Officer Robin Long heard a police radio broadcast that a suspicious Hispanic man had been seen leaving the area of several Portland banks in a white Datsun station wagon with license number GEB 298. The man, later identified as Patino, was "suspicious" because several bank employees thought he looked like a man who had recently robbed them. Half an hour later, Long heard another broadcast that a different bank had just been robbed by a lone person described as a white male, age 28 to 29, 5' 8" to 5' 9"' tall, and wearing a white hat, who had carried the money out of the bank in a magazine. Long testified that to him the term "white" included Hispanics.

A few minutes after hearing the second broadcast, Long saw a white Datsun station wagon approximately 20 blocks from the bank that had just been robbed. Long observed that there were two persons in the Datsun, that both appeared to be Hispanic, and that the driver seemed to make a hasty lane change and turn after spotting the patrol car. The Datsun disappeared before Long could catch up with it, but he soon found it again parked a few blocks away. Long noticed that the parked Datsun had license number GEB 598, which differed from the broadcast license number by only one digit, that the car had only one occupant, that a second man emerged from a nearby lawn to enter the car on the passenger side, and that the driver then handed him a folded magazine. The driver was appellant Gonzales, and the passenger was his codefendant Patino. When Long approached the car on foot, he also noted that there was a blue sweatshirt and a pair of jeans on the back seat and portions of brown paper bags on the floor, all of which were similar to items he knew were used by robbers in previous local bank robberies.

Officer Long conducted a pat-down search of Gonzales that revealed four $20 "bait bills" from the recent robbery rolled up in his left sock. Long next searched the car and found a large stack of money in the glove compartment. Gonzales was then advised of his rights in English, which he indicated that he understood. When other officers arrived at the scene, they searched the nearby bushes and found some clothing, a hat, and a false mustache that were later identified by a bank teller as those worn by the robber.

On arrival at the police station, Gonzales read two forms explaining his Miranda rights in both English and Spanish, and had the Spanish form read to him orally. Appellant indicated orally and by signing both forms that he understood his rights. He was then interviewed by several police officers. Officer Painton conducted most of the questioning half in Spanish, appellant's native language, and half in English. Painton testified that Gonzales understood questions put to him in English and often answered in English, but that he sometimes asked for clarification in Spanish.

Appellant told the police that he gave Patino, an acquaintance, a ride to the vicinity of the robbed bank, where they parted On the day before trial, appellant's counsel informed the court that she had changed her trial tactics and therefore needed a pretrial determination of whether Gonzales had knowingly and voluntarily waived his constitutional rights before giving the statements outlined above. The request was denied after the government objected that appellant had waived the issue by failing to raise it at the pretrial suppression hearing. The court did, however, instruct the jury that it must find a knowing, voluntary waiver of appellant's constitutional rights before it could consider the statements, and later stated for the record that it had made a preliminary determination that appellant had understood and waived his rights.

company. Later, as appellant was leaving the area, Patino flagged him down for another ride. During the second ride, Patino began removing some of his clothing, which Gonzales said was his first indication that Patino had robbed a bank. At that point, according to appellant, Patino gave him the bait bills that the police found in his sock. When a police car appeared behind them, Gonzales said he handed Patino his clothing and other property and ordered him to leave the vehicle. When Patino returned after hiding the clothes in the bushes, the police arrested both men.

The judge also denied appellant's requests that the two defendants be tried separately. Similarly, the court denied appellant's motions to exclude all evidence and statements attributable to the stop of his car, which appellant alleged was not supported by probable cause. The court initially denied a motion to exclude all references to robberies other than the one charged. ¹

The trial judge also restricted appellant's attempted impeachment of Officer Painton's allegedly poor Spanish language skills. Although she allowed cross-examination about Painton's academic background and residence in Spanish-speaking countries, she refused to allow the jury to hear any other evidence. In an offer of proof, Painton was asked to translate the preface to a legal dictionary that was read to him in court, and a Spanish professor then harshly criticized his translation. The evidence was excluded when the prosecutor objected that spoken and written Spanish are very different, and the court added:

You cross examined him thoroughly about his qualifications, and I'm going to leave that to the jury. But I am going to sustain the objection to suddenly bringing forth a book, I don't know what it is, and having your interpreter interrupt her duties of interpreting to read to him Spanish. So I will sustain the objection.

In addition, the court required Painton to substitute the words "the other man" for Patino's name when describing appellant's responses to interrogation, which was necessary to avoid prejudicial testimony against Patino by a codefendant who was not subject to cross-examination. Appellant's attorney was allowed, however, to bring out on cross-examination that Gonzales had known the "other man."

Patino's attorney implied in his opening statement that Gonzales rather than Patino had robbed the bank. However, prior to the close of the government's case and before appellant's attorney had addressed the jury or presented any witnesses, Patino spontaneously informed the jury that "Mr. Gonzales is innocent.... I put the money in the sock. The whole idea was mine. He didn't know anything about it." Patino then changed his plea to guilty, and later testified that the story Gonzales told the police was essentially correct and that he The jury found appellant innocent of robbery but guilty of receiving stolen money and being an accessory after the fact. He challenges four of the trial court's rulings on appeal, each of which will be addressed in turn.

had committed the robberies without appellant's knowledge.

II SEVERANCE

Appellant contends that the trial court erred by denying his motions to sever his and Patino's trials. The relevant rule provides that

[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants ... for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

Fed.R.Crim.P. 14 (emphasis added). The standard of review for determining whether a severance motion should have been granted under Rule 14 is whether the trial court abused its discretion. United States v. Cowley, 720 F.2d 1037, 1040 n. 1 (9th Cir.1983). We have recently elaborated on what constitutes an "abuse of discretion" in this context by saying:

Generally speaking, defendants jointly charged are to be jointly tried....

The test for determining abuse of discretion in denying severance under Rule 14 is whether a joint trial would be so prejudicial that the trial judge could exercise his discretion in only one way.... The ruling of the trial judge will rarely be disturbed on appeal....

The party seeking reversal of a decision denying severance under Rule 14 has the burden of proving "clear," "manifest," or "undue" prejudice from the joint trial.... Such a party must show more than that a separate trial would have given him a better chance for acquittal.... He must also show violation of one of his substantive rights by reason of the joint trial: unavailability of full cross-examination, lack of opportunity to present an individual defense, denial of Sixth Amendment confrontation rights, lack of separate counsel among defendants with conflicting interests, or failure properly to instruct the jury on the admissibility of evidence as to each defendant.... In other words, the prejudice must have been of such magnitude that the defendant was...