U.S. v. Alvarez

Decision Date20 November 1978
Docket NumberNo. 77-5487,77-5487
Citation584 F.2d 694
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gilberto Pablo ALVAREZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Nago L. Alaniz, San Diego, Tex., for defendant-appellant.

J. A. Canales, U.S. Atty., George A. Kelt, Jr., Asst. U.S. Atty., Houston, Tex., John Patrick Smith, Asst. U.S. Atty., Brownsville, Tex., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

The appellant, Gilberto Alvarez, was convicted of heroin trafficking charges 1 by the words of a dead man. The decedent's statements allegedly implicating Alvarez were heard only by Lopez, the prosecution's principal witness, who had earlier pled guilty to narcotics charges and received probation. In addition to other alleged trial errors, the appellant urges that Lopez' in-court testimony of the out-of-court statements by the decedent constituted inadmissible hearsay and violated his constitutional right of confrontation. We agree, and therefore reverse the judgment of the court below.

Alvarez' arrest and conviction followed a government investigation of heroin dealing in Rio Grande, Texas during the fall of 1975. An agent working undercover made contact with Jose "Chema" Lopez, the alleged "out front" man for the operation. The agent succeeded in purchasing almost 20 ounces of heroin from Lopez. Lopez would later testify that he in turn, had obtained the heroin from Lucio Mejorado, the middleman, who supposedly told Lopez that the heroin was supplied by the appellant Alvarez. At no time, however, did Lopez or any government agent communicate directly with Alvarez. Nor was Alvarez ever seen meeting with Mejorado or any other alleged members of the conspiracy. In January, 1976, indictments issued charging Lopez, Mejorado, Alvarez, and several others with violating narcotics laws. Within a few days, Alvarez left for Mexico where he remained for most of a year until extradition was effected. Meanwhile, Lopez pled guilty, received probation, and became the government's most communicative witness. Mejorado was convicted but died in a car accident prior to Alvarez' return to this country. When Alvarez finally came to trial, the critical evidence connecting him to the conspiracy was Lopez' report that Mejorado had identified Alvarez as the supplier. Thus, the government's case depends mightily upon the admission of the decedent's out-of-court statements. Such evidence is rank hearsay which, prior to 1975, would have been patently inadmissible. E. g., United States v. Oliva, 497 F.2d 130, 134 (5th Cir. 1974). With the adoption of the new Federal Rules of Evidence, however, the realm of admissibility has been significantly expanded. These rules infuse the government's claim for admission with much more serious merit than would previously have existed. Applying these new rules of evidence, and recent decisions construing them, we turn to the government's arguments that the deceased witness' words were properly used to convict the appellant.

Rule 801(d)(2)(E): Statement By a Coconspirator

The first argument raised by the government is that Lopez' in-court testimony of Mejorado's out-of-court declaration was admissible as a statement by a co-conspirator under Federal Rule 801(d)(2)(E). This rule provides that a "statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible because it is not hearsay at all. Traditionally, the co-conspirator exception was predicated upon the fulfillment of several requirements, 2 one of which poses an especially serious obstacle to the admission of Mejorado's incriminating words: "(S)uch declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof Aliunde that he is connected with the conspiracy." Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). The appellant contends that the district court incorrectly applied the Glasser rule by allowing the introduction of alleged hearsay to rest on insufficient independent evidence of the defendant's conspiratorial complicity. 3 To assess this contention, we must first identify which evidence may be used in establishing Alvarez' participation in the conspiracy and then ascertain whether this evidence suffices to permit introduction of the co-conspirator's alleged hearsay.

Initially, we reaffirm the premise that the hearsay seeking admission may not be used as independent evidence of conspiracy to admit that same hearsay. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In Glasser, the Supreme Court declared that hearsay may not "lift itself by its own bootstraps to the level of competent evidence." 315 U.S. at 74-75 62 S.Ct. at 467. With the enactment of the new federal rules, though one court has concluded that this principle has been legislatively overruled. See Fed.R.Evid. 104(a), (b). Because Rule 104 permits otherwise inadmissible evidence to be used in preliminary determinations of admissibility, the First Circuit reasons that the hearsay seeking admission can be used to determine its own admissibility. This reasoning overlooks, however, that the preliminary determination commanded by Glasser rejects evidence not based upon its admissibility but according to whether such evidence is Independent of the proffered hearsay. Recent decisions of our court have not qualified the requirement that the admission of coconspirator's hearsay be predicated upon independent evidence implicating the defendant. E. g., United States v. Hansen, 569 F.2d 406, 409 (5th Cir. 1978); United States v. Caro, 569 F.2d 411 (5th Cir. 1978). Moreover, the enduring vitality of Glasser is confirmed by the other circuits. United States v. Mangan, 575 F.2d 32, 42-43 (2d Cir. 1978); United States v. Enright, No. 77-5239, 579 F.2d 980 (6th Cir. 1978); United States v. Santiago, No. 77-2021, 582 F.2d 1128 (7th Cir. 1978); United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978); United States v. Avila-Macias, 577 F.2d 1384, 1388 (9th Cir. 1978). Accordingly, the government's threshold burden of proving Alvarez' participation in the conspiracy cannot be lightened by use of Lopez' alleged hearsay.

Also unavailable to the government is Lopez' unobjected-to statement that Mejorado said the "heroin was Alvarez'." Absent plain error, hearsay that is not subjected to proper objection is ordinarily admissible at trial for any relevant purpose. E. g., Monroe v. United States, 320 F.2d 277 (5th Cir.), Cert. denied 375 U.S. 991, 84 S.Ct. 630, 11 L.Ed.2d 478 (1963). Thus, arguably, the unobjected-to hearsay must be severed from the properly objected-to statements in determining Alvarez' participation in the conspiracy. In this case, however, the defense had already registered its objection to Lopez' alleged hearsay testimony through a pretrial motion In limine and by means of previous objections at trial to substantially the same testimony. The trial court had already ruled adversely to defendant's contention. Thus, there was no need for the defense to make the assuredly futile gesture of repeating its objection. United States v. Love, 472 F.2d 490, 496 (5th Cir. 1973). See also McCormick on Evidence 18 (2d ed. 1972). Therefore, the unobjected-to statement stands with the other alleged hearsay.

Similarly, the government seeks to extricate from the purported hearsay two other items of Lopez' testimony in order to admit the hearsay aspects of his evidence. Here, the question is whether the supposedly severable items constitute verbal acts and can therefore be isolated from the remaining hearsay to satisfy the independent evidence test as well as to establish guilt as part of the government's case-in-chief. The verbal acts doctrine permits a witness to testify to the fact that an out-of-court conversation occurred rather than to the truth of matters asserted therein. See Yarbrough v. Prudential Ins. Co., 100 F.2d 547, 548 (5 Cir. 1938); 6 Wigmore, Evidence § 1772 Et seq. (Chadbourne rev. 1976). Invoking this doctrine, the government contends that Lopez properly testified to two phone calls he overheard Mejorado make that implicated the appellant Alvarez. According to Lopez, Mejorado called Alvarez from Lopez' home, then drove to Alvarez' place and telephoned Lopez from there. Both phone calls occurred immediately prior to the heroin delivery, a fact significantly enhancing their probative value. If Mejorado's statements to Lopez in the course of these calls comprise verbal acts, then Lopez' in-court account of those statements was properly heard by the jury.

Of the two phone calls, the easier one to resolve is Mejorado's call to Lopez allegedly placed from Alvarez' home. That Lopez received a call from Mejorado of itself has no bearing on Alvarez' guilt or innocence. The relevant feature of the call is that it came from Alvarez' home. Lopez' knowledge of this fact, however, was based on Mejorado's statement during the phone call that he was speaking to Lopez from Alvarez' home. Such a statement could not be subsequently used in Lopez' testimony for the truth of the matter asserted, that is, that Mejorado called from Alvarez' home. Accordingly, Lopez' testimony about the phone call he received from Mejorado was inadmissible hearsay.

The more difficult question is whether hearsay was implicated by Lopez' testimony that he heard Mejorado call Alvarez. The record does not reflect how Lopez learned that Alvarez was on the other end of Mejorado's call. If Mejorado stated to Lopez that he was calling Alvarez, the testimony would be hearsay, and could not be used for the truth of the matters asserted therein. United States v. Bucur, 194 F.2d 297, 303-304 (7th Cir. 1952). If on...

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