U.S. v. Powell, 84-2430
| Decision Date | 04 September 1985 |
| Docket Number | No. 84-2430,84-2430 |
| Citation | 771 F.2d 1173 |
| Parties | UNITED STATES of America, Appellee, v. Geary David POWELL, Appellant, UNITED STATES of America, Appellee, v. James F. BARFIELD, Appellant, UNITED STATES of America, Appellee, v. Bill BARFIELD, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Darrell Brown, Little Rock, Ark., for appellant.
Gloria C. Phares, Dept. of Justice, Washington, D.C., for appellee.
Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and SACHS, * District Judge.
Geary David Powell, James F. Barfield, and Bill Barfield appeal from their convictions on two counts of transporting illegal aliens and aiding and abetting each other in that offense, in violation of 8 U.S.C. Sec. 1324(a)(2) and 18 U.S.C. Sec. 2. On appeal, they allege error in the District Court's 1 denial of their motion for judgment of acquittal, failure to grant a mistrial after the prosecuting attorney corrected a supposed error in the translation of a witness's testimony, and failure to grant a mistrial for alleged prejudicial pretrial publicity. Finding no error in the District Court's rulings, we affirm.
Pedro and Rufino Astello illegally crossed the Mexican-American border into Texas on or about December 20, 1983. They traveled on foot to San Diego, Texas, where they arrived in about ten days. There, they met Homero Gonzales, who asked if they were looking for work. Pedro provided Gonzales with a piece of paper containing James Barfield's number.
Gonzales called James Barfield and told him that two of Barfield's former workers had arrived in San Diego looking for work. James told Gonzales that he and his son, Bill Barfield, would come and pick up Pedro, Rufino, and other alien workers to be provided by Gonzales. Gonzales testified that James Barfield paid him $50 for each worker so provided.
On December 31, 1983, Bill and James arrived at San Diego and received Rufino, Pedro and eight other illegal aliens to work in a pine tree farm owned by the Barfields and Geary David Powell. James Barfield spoke in Spanish to the men, and told them to crouch down in the back of the Barfields' truck and try to avoid being seen during their journey. The Barfields covered the men in the back of the truck and left for the Barfields' home in Arkansas. When they arrived in Arkansas the following day, Powell greeted the aliens and asked them, in Spanish, how their trip from San Diego had been. The aliens went to work on the pine tree farm and lived in houses provided by Barfield and Powell.
In March 1984, Powell told the aliens that there was no more work and that they would have to leave. They refused to leave because Powell still owed them money. Powell promised to send the money to them in Mexico as soon as his buyer paid him. The Astellos protested because Powell had broken similar promises when they had worked for him in the past. They left, however, after Powell shut off the water in their houses. The Barfield-Powell involvement with illegal aliens was revealed to the authorities by the Astellos when they were arrested shortly after leaving the pine tree farm.
At trial, the government's principal witnesses were Homero Gonzales and Pedro and Rufino Astello. Their testimony, in essence summarized supra, implicated Powell and the Barfields in the transportation of the Astellos from San Diego, Texas to Gillham, Arkansas. Evidence was also introduced showing that both Powell and James Barfield had telephoned Gonzales in San Diego to arrange for acquiring illegal alien workers. After a two-day trial, the Barfields were convicted of transporting illegal aliens and Powell was convicted of aiding and abetting that offense. This appeal followed.
A. The Prosecutor's Correction of the Interpreter's Translation.
During direct examination of government witness Pedro Astello, Pedro was asked how long he was in the truck on the trip to Gillham, Arkansas. The transcript of this and what followed is set forth below:
Q. About how long were you in the back of the truck?
A. About two hours, two.
Q. About how long?
Mr. Webb: Your honor, I think the witness is saying twelve, but I believe the interpreter is saying two.
Trial Transcript at 24. At that point the defense moved for a mistrial, alleging that the prosecutor's comment had so prejudiced the jury that a fair trial could not be had. The trial court denied the motion for a mistrial, but did instruct the jury to disregard the prosecutor's comment regarding the accuracy of the translation. On appeal, plaintiffs contend that the trial court erred in its failure to grant a mistrial for the prosecutor's misconduct.
The grant of a mistrial for prosecutorial misconduct is appropriate if the conduct complained of is so prejudicial that the defendant is deprived of a fair trial. The grant or denial of a motion for mistrial is placed in the sound discretion of the district court and may only be reversed on a showing of abuse of discretion. United States v. Krevsky, 741 F.2d 1090, 1094 (8th Cir.1984). While we agree that the prosecutor's attempt, in the presence and hearing of the jury, to correct the interpreter's translation was improper, in the circumstances of this case we find no abuse of discretion in the District Court's refusal to grant a mistrial. An immediate objection was lodged and the District Court promptly instructed the jury to disregard the prosecutor's comment. The prosecutor did not attempt any similar correction during the remainder of the trial. Moreover, the defendants were not prejudiced by the attempted correction, because the government's case did not rest solely on that part of Pedro's testimony. Several questions later in his testimony, he stated (through the interpreter) that the trip to Gillham took twelve hours. Trial Transcript at 28. His brother, Rufino, also testified that the trip to Arkansas required twelve hours, and Homero Gonzales testified that the Barfields came to pick up the Astellos under circumstances that strongly indicate that they knew they were transporting illegal aliens. The Astellos also implicated Powell in the scheme, through his prior dealings with the Astellos and his actions at the time the Astellos arrived in Arkansas and thereafter. Given...
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