U.S. v. Alvarez-Lopez

• Decision Date: 25 August 1977
• Docket Number: D,No. 76-1257,ALVAREZ-LOPE,76-1257
• Citation: 559 F.2d 1155
• Parties: 2 Fed. R. Evid. Serv. 713 UNITED STATES of America, Plaintiff-Appellee, v. Armandoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1155

559 F.2d 1155

2 Fed. R. Evid. Serv. 713

UNITED STATES of America, Plaintiff-Appellee, v. Armando ALVAREZ-LOPEZ, Defendant-Appellant.

No. 76-1257.

United States Court of Appeals Ninth Circuit.

Aug. 25, 1977.

Eric L. Henrikson, argued, Henrikson & Gee, Oakland, Cal., for defendant-appellant.

Sandra J. Wittman, Asst. U. S. Atty., on the brief, Terry J. Knoepp, U. S. Atty Barton C. Sheela, III, Asst. U. S. Atty., San Diego, Cal., argued for plaintiff-appellee.

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

Before KOELSCH and HUFSTEDLER, Circuit Judges, and FOLEY, ^* District Judge.

HUFSTEDLER, Circuit Judge:

Armando Alvarez-Lopez ("Alvarez") appeals from his conviction for conspiracy to possess and possession of heroin in violation of 21 U.S.C. §§ 846, 841(a) (1). The question on appeal is whether the district court committed prejudicial error in refusing to permit Alvarez to inquire into the Government's star witness' prior arrest for smuggling narcotics. Following Alford v. United States (1931) 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, and its progeny, we hold that the curtailment of cross-examination was prejudicial error of constitutional dimension requiring reversal.

The Government's case against Alvarez depended heavily upon the testimony of Rocky Gentile, a Government informant, who was paid by the Government to "make" cases against persons who were engaged in narcotics trafficking. Gentile described himself as an undercover special employee of the DEA, working for DEA Agent Williams. In the course of that employment, Gentile was paid contingent fees when his undercover work resulted in arrests. The amount that Gentile was paid varied with the quantity of drugs seized and the number of people arrested. For this particular case, the DEA paid Gentile $1,000.

According to Gentile's testimony, Gentile met with codefendant Sanchez sometime in early October, 1975, and Sanchez told Gentile that he had a connection in Mexicali, Mexico, for heroin which he could supply to Gentile. Arrangements were made between the two men for a sale of heroin in Oceanside, California, on October 6, 1975, to a buyer to be produced by Gentile. On October 6, Sanchez drove to Oceanside with Alvarez. Sanchez went inside a restaurant where Gentile was waiting for him. The two men went back to a truck (later identified as belonging to Alvarez' father), where Sanchez introduced Alvarez to Gentile. This was the first time that Gentile had ever met or even heard of Alvarez. Sanchez then produced an ounce of heroin from the glove compartment of the vehicle, and Alvarez produced four ounces of heroin from under the seat. After he saw the heroin, Gentile called Agent Williams, who then came to the restaurant posing as a buyer. Williams was introduced to Alvarez and Sanchez, saw the heroin, and made the arrest.

Alvarez and Sanchez' versions were quite different. According to Sanchez, Gentile repeatedly importuned him to get involved in a money-making scheme. Sanchez finally agreed to meet Gentile on October 6, 1975, in a bar in Santa Monica, to leave the car parked for a while, and then to meet Gentile in Oceanside. Sanchez got Alvarez to drive him on the errand because Sanchez' own car was inoperative. At the appointed bar, they were met by a man named "El Chocolate," who the two defendants thought was a relative of the informant. Both left the car for a while, and after they returned, they then drove to Oceanside. When they met Gentile in Oceanside, Gentile took the packages out of the glove compartment, smelled them, and told the men that they had just delivered heroin. After Gentile summoned Agent Williams, Gentile directed the agent to the heroin. Neither Alvarez nor Sanchez ever handled the heroin in Williams' presence, a fact corroborated by Agent Williams' testimony. ¹

In response to a question on direct examination by the prosecuting attorney, Gentile testified that he had been convicted of smuggling aliens, a felony. The prosecutor then asked him, "You had never been arrested with anything to do with narcotics?" Gentile answered, "No." At that juncture, out of the jury's presence, Alvarez' counsel requested production of Gentile's "rap sheet," which had earlier been promised to him. The prosecuting attorney responded that he did not have "the rap sheet here, but as I understand it, he had been charged with smuggling aliens. At least, that's to the best of my knowledge and that there are no narcotics arrests." Defense counsel said "there might be some other arrests and I think we should be entitled to know about that. This all might go for the motive for his role as a Government informant." Upon the representation of the prosecuting attorney that Agent Williams would bring the rap sheet, and upon defense counsel's request to keep Gentile available until the rap sheet was produced, the court suggested that the trial proceed.

On cross-examination, Alvarez' counsel asked Gentile about the circumstances under which he went to work for Agent Williams. Gentile replied: "Well, I don't like drugs. I have seen too many people get all goofed up on drugs. I have seen too many young kids and I had a friend of mine and he is a customs agent and so I told him about it. He introduced me to Bob Williams."

The rap sheet thereafter furnished revealed a long list of Gentile's arrests and some convictions. The only recent conviction was in 1972 for smuggling aliens, but the sheet also disclosed that Gentile was arrested by customs agents in 1971 for smuggling heroin. The 1971 case was labeled "dismissed," for undisclosed reasons. In a discussion in camera concerning further cross-examination of Gentile based on the rap sheet, the court indicated that it would not permit defense counsel to inquire into any felony convictions older than ten years, and the court also said, "I do not intend to let you inquire into anything that did not result in a conviction." The court added: "I would have to assume that there was not a conviction for some of those. I am not going to let you go into it. On cross-examination he said that he had no felony convictions and that is as far as it is going to go." Defense counsel argued that he should be entitled to impeach Gentile upon "the contradictions," and "the motive of Mr. Gentile's involvement in this case and his credibility insofar as his testimony on direct examination in the Government's case in chief and also after having been called by ." At this juncture, the court intervened, indicating that the court had ruled on the point and that the trial must proceed.

Alvarez' counsel then called Gentile, seeking to explore the inconsistencies in Gentile's testimony that had been revealed by the rap sheet. He attempted to impeach Gentile while trying to stay within the bounds of the court's ruling. He was stopped by the court. Gentile denied that he had discussed his earlier testimony with Government counsel; however, he volunteered that he misunderstood one of the questions. Defense counsel asked him which question he had misunderstood. The witness responded, "I may have misunderstood when I had an arrest before I thought it was for wetbacks." Defense counsel asked him if his earlier response that he had been convicted for one felony was not correct. The witness responded affirmatively. The following colloquy then occurred."

"Q. Sir, you also I believe, indicated in response to a question of mine how you came to get into the business of working for Mr. Williams and that you were troubled by people using heroin? Is that correct?

"A. That's right.

"Q. Up until that time had you been involved in narcotics in any way?

"A. Yes.

"Q. Could you tell us, sir, what your involvement in narcotics was?

"(Prosecuting attorney): Your Honor, I don't see the relevance of the past involvement?

"The Court: Objection sustained.

"Q. (By defense counsel) Apart from working with Mr. Williams in the past eight or nine months, have you had any other activities in the area of narcotics?

"A. No."

In restricting defense counsel's inquiry into Gentile's criminal record, particularly his arrest for narcotics smuggling, the district court applied the principles of Rule 609 (limitations upon impeachment by evidence of conviction of crime) and Rule 404(b) (limiting the use of other crimes, wrongs, or bad acts for impeachment purposes) of the Federal Rules of Evidence. Neither rule is applicable in this context. This case does not involve rules of impeachment or impeachment of a witness by collateral means. Moreover, it does not involve the rules of general impeachment applicable to cross-examination of a defendant in a criminal case who has taken the stand. The Evidence Code does not attempt to write a catalog of all the rules which govern evidence that can be used to impeach a witness. Rather, the code only attempts to lay down a few specific rules dealing with the situations in which impeachment upon collateral matters may be particularly subject to potential abuse, and, in those situations, to give substantial discretion to the trial court in admitting or excluding the impeaching evidence. (See, e. g., Notes of Advisory Committee on Proposed Rules, Federal Rules of Evidence, 28 U.S.C.A. at pp. 87-88 (Note on Rule 402) and p. 109 (Note on Rule 404) (1975).)

Inquiries which defense counsel was prevented from making involved neither general nor collateral matters. Defense counsel was not attempting to use a prior felony conviction for the purpose of general impeachment. The questions were directed very specifically to the testimony that the prosecution had elicited from Gentile on direct. Cross-examination into the truth of the statements that had thus been elicited by the prosecutor could not be foreclosed either by an invocation of Rule 609 or Rule 402. Even if the Rules of Evidence were applicable in this situation, the prosecutor's effort to foreclose attack on the testimony which h...