U.S. v. Torres, 91-1028

• Decision Date: 18 March 1992
• Docket Number: No. 91-1028,91-1028
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogelio Gomez TORRES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 858

959 F.2d 858

UNITED STATES of America, Plaintiff-Appellee, v. Rogelio Gomez TORRES, Defendant-Appellant.

No. 91-1028.

United States Court of Appeals, Tenth Circuit.

March 18, 1992.

Submitted on the briefs: ^*

Michael G. Katz, Federal Public Defender, and Mark J. Rosenblum, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Michael J. Norton, U.S. Atty., D. Colorado; Wayne Campbell, and John M. Hutchins, Asst. U.S. Attys., Denver, Colo., for plaintiff-appellee.

Before McKAY, Chief Judge, and BALDOCK and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Rogelio Gomez Torres and Florentino Soria were jointly charged in a two-count indictment as follows: (1) in count one the two were charged with unlawfully conspiring on or about July 31, 1990, to distribute cocaine in violation of 21 U.S.C. § 846; and (2) in count two they were charged with unlawfully distributing cocaine on or about July 31, 1990, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court granted Soria's motion for a severance and accordingly Torres was tried separately. The jury convicted Torres on both counts and he was sentenced to imprisonment for 120 months and supervised release thereafter for eight years. Torres appeals his conviction. ¹ We affirm.

As indicated, count one set forth a conspiracy occurring "on or about July 31, 1990" and count two set forth an unlawful distribution of cocaine occurring "on or around July 31, 1990." Prior to trial, Torres filed a Motion to Exclude Other Crimes Evidence under Fed.R.Evid. 404(b), seeking thereby to exclude, at trial, any evidence of other crimes committed by him except for those allegedly occurring on July 31, 1990. Specifically, Torres sought to exclude testimony of a government informant (Baca) that: (1) on July 17, 1990, Torres sold three ounces of cocaine to Baca; (2) on July 20, 1990, Torres sold Baca one and one-fourth kilograms of cocaine; (3) on July 24, 1990, Baca overheard a conversation between Torres and Soria in which the latter two discussed the impending arrival of "a load"; (4) on July 26, 1990, Torres told Baca that he was expecting a load of marijuana on the following day and a load of cocaine in two or three days; (5) on July 27, 1990, Baca met with Torres and observed approximately 13 1/2 pounds of marijuana being unloaded from a vehicle at the premises of Westland Auto Body, a body and fender repair shop operated by Soria and Torres; and (6) on July 27, 1990, Torres offered to sell Baca three kilograms of cocaine. Upon hearing, the district court granted, in part, Torres' Motion to Exclude, allowing the government to only introduce evidence of events occurring on July 17, 1990, and July 31, 1990. The record does not disclose just why the district court foreclosed the prosecution from introducing evidence concerning events occurring between those two dates, which evidence, inter alia, conceivably had materiality, and relevancy, to the conspiracy charge, at least.

Be that as it may, at trial a government witness was the informant, Richard Baca. On direct examination, the prosecutor asked Baca how he became acquainted with Torres, to which query Baca stated that he knew Torres "on the streets ... as a dealer." Counsel immediately moved for a mistrial which motion was denied, though the jury was instructed to disregard the answer given by Baca.

After the motion for a mistrial was denied, the prosecutor resumed his questioning of Baca, in which Baca, in response to questions, testified that he had given a DEA agent names of individuals from whom he believed he could buy cocaine, and after his conversation with the DEA agent, he (Baca) then contacted Rogelio Torres. Counsel did not make any immediate objections to that response, but at the next recess renewed his motion for a mistrial, which motion was again denied.

On appeal, Torres asserts that the district court erred in denying his motions for mistrial. Counsel argues that Baca's statement, volunteer or not, that he knew Torres "on the street ... as a dealer" tended to show that Torres was guilty of crimes other than the ones charged in the indictment and also was in violation of the district court's order that the prosecutor could only introduce evidence of events occurring on July 17 and 31, 1991. In denying the first motion for mistrial the district court obviously was of the view that the testimony objected to was not an intentional violation of his earlier order. And in any event, the district court sustained the objection, struck from the record Baca's characterization of Torres and instructed the jury to disregard the same. However, the district court did not feel that the problem necessitated the drastic action of declaring a mistrial. We agree. We find no abuse of discretion. In support of our holding, see United States v. Lonedog, 929 F.2d 568 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991), and United States v. Preveto, 881 F.2d 844, 858-59 (10th Cir.1989), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989).

As indicated, after the first motion for a mistrial, the...