Castillo v. United States, 26232.

• Decision Date: 02 April 1969
• Docket Number: No. 26232.,26232.
• Parties: Ignacio Wilkins CASTILLO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

409 F.2d 762 (1969)

Ignacio Wilkins CASTILLO, Appellant, v. UNITED STATES of America, Appellee.

No. 26232.

United States Court of Appeals Fifth Circuit.

April 2, 1969.

Edward P. Fahey, San Antonio, Tex., for appellant.

Ernest Morgan, U. S. Atty., Ted Butler, Asst. U. S. Atty., Warren N. Weir, Asst. U. S. Atty., Western Dist. of Texas, San Antonio, Tex., for appellee.

Before ALDRICH^*, GODBOLD and DYER, Circuit Judges.

GODBOLD, Circuit Judge:

Castillo appeals from conviction on a jury verdict of two counts of possession of narcotics,¹ two counts of sale without a Treasury form² and two counts of sale without a stamped package.³ We reverse.

There was testimony that on two successive nights an informer, Williams, accompanied by a government agent, Bustos, and under the surveillance of two other government agents, made the two purchases of narcotics from appellant which are the subject of this case. The buys took place under lighting conditions which made identification of the seller difficult, so that identification was a critical issue in the trial.

Agent Bustos testified that after the first buy he went to his agency's office and there was handed a file of photographs to look through. He thumbed through them until he found the picture of the man who had sold narcotics to Williams, and he identified him as the seller. The photograph depicted a person known to Agent Hambreck to be appellant. Identifying a photograph as depicting the seller, by searching a file of photographs in the possession of a law enforcement officer, was not impermissible and not objected to. But the subsequent testimony of Agent Hambreck concerning the same identification procedure requires reversal.

Hambreck was one of the agents who had maintained surveillance of the purchase site. He did not testify as to identity of the seller based on his observation at the scene. He testified that Williams and Bustos reported to him at his office after the first buy, and that he got out his files containing pictures of "known users" (of narcotics). Objection to this description of the pictures was overruled. Then Hambreck was allowed to describe the files as having been compiled by him in his narcotics work and as containing "photographs of various users of narcotics and marijuana in San Antonio, Austin, Houston, throughout the State of Texas, and places where I work." Objection to this description was overruled also. Hambreck described the separate and independent searches made of the photograph files by Bustos and Williams, each resulting in extraction of a photograph of Castillo as the seller. In so testifying Hambreck referred to the photographs as "mug shots."

What Hambreck was describing was the procedure by which witnesses' recollections of the seller were matched with a photograph depicting a person. Two witnesses, Bustos and Williams, acting independently, extracted the same photograph from the file. There was no issue of authentication, and neither the file nor the particular photograph was offered in evidence. Agent Hambreck either knew or ascertained that the person depicted was appellant and that he lived at the residence where the buy was made. Hambreck's testimony that the photograph depicted appellant was undisputed.

Hambreck's testimony describing the file of photographs searched by Bustos and Williams was inadmissible for more than one reason. His characterization of the file as containing "mug shots" depicting "known users" was not shown to relate to persons and events of which he had knowledge and thus was objectionable as hearsay. No exception to the hearsay rule was established under any official records rationale.

In addition the characterizations were wholly unnecessary and served no legitimate purpose. The earlier testimony of Bustos had demonstrated how the testimony could be handled, without prejudice to appellant, to achieve the legitimate purpose of coupling seller and photograph as the same person. Appellant's character was not in issue. The chain of proof from visual observation of the seller by the witness, to selection by the witness of a picture as one depicting the seller, to undisputed identification by another of the depicted image as that of a particular person who was then arrested, depended not at all on the source or character of the photograph but upon the witnesses' visual observation of it plus Hambreck's undisputed ascertainment that the picture they selected was of appellant.⁴

Appellant contends that the prosecution elicited from Agent Hambreck hearsay testimony to...