U.S. v. Arias-Santos, ARIAS-SANTO

• Decision Date: 01 November 1994
• Docket Number: Nos. 93-1128,ARIAS-SANTO,M,93-1129,s. 93-1128
• Citation: 39 F.3d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Josearia Elena Rascon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1070

39 F.3d 1070

UNITED STATES of America, Plaintiff-Appellee, v. Jose ARIAS-SANTOS, Maria Elena Rascon, Defendants-Appellants.

Nos. 93-1128, 93-1129.

United States Court of Appeals Tenth Circuit.

Nov. 1, 1994.

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Asst. Federal Public Defender, Denver, CO, on the briefs, for defendant-appellant Jose Arias-Santos.

Normando R. Pacheco, Denver, CO, for defendant-appellant Maria Rascon.

Charlotte J. Mapes, Asst. U.S. Atty. (James R. Allison, Interim U.S. Atty., and John M. Hutchins, Asst. U.S. Atty., with her on the briefs), of Mountain States Drug Task Force, Denver, CO, for plaintiff-appellee U.S.

Before SEYMOUR, Chief Judge, LOGAN, and ANDERSON, Circuit Judges.

SEYMOUR, Chief Judge.

Maria Rascon and Jose Arias-Santos were convicted after a jury trial of conspiracy to possess over 500 grams of cocaine with intent to distribute. ¹ Mr. Arias was also convicted of possession with intent to distribute over 500 grams of cocaine, and of carrying a firearm during and in relation to a drug offense. Mr. Arias contends on appeal that his due process rights were violated when the trial court refused to allow him to cross-examine government witnesses about allegations of witness coaching, that the court erred in its response to a question from the jury during its deliberations, and that the court erred in enhancing his sentence for obstruction of justice on the basis of his trial testimony. Ms. Rascon contends that the trial court erred in determining, for purposes of sentencing, that the amount of cocaine she conspired to possess was in excess of 500 grams. We affirm Mr. Arias' convictions, vacate his sentence, and remand for resentencing. We affirm Ms. Rascon's sentence.

I.

Mr. Arias and Ms. Rascon were tried jointly on charges arising from a drug transaction involving undercover DEA agents and a confidential informant. The record, viewed in the light most favorable to the government, see United States v. Gary, 999 F.2d 474, 476 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993), reveals the following sequence of events. Ralph Villarruel, a DEA special agent, was working undercover as a buyer of cocaine with an informant named Adrian Teran-Guillan. Mr. Teran had known Ms. Rascon for about six years. In early September 1992, Mr. Teran had several conversations with Ms. Rascon about illegal drug transactions. Ms. Rascon agreed to introduce Mr. Teran to the man who lived with her, Arnold Valadez-Herrera, so that they could do business. On September 14, Ms. Rascon and Mr. Teran agreed to a sale of cocaine on the following day.

The next day, Mr. Teran and Agent Villarruel picked up Ms. Rascon, went to a restaurant parking lot, and showed her the purchase money in a briefcase. On the way, they discussed the price for a sale of three kilos of cocaine. After Ms. Rascon saw the money, she drove with Mr. Teran and Agent Villarruel to another parking lot and met with Mr. Valadez. After negotiations and phone calls, the parties agreed to a two-kilo deal at another restaurant parking lot.

Mr. Teran and Agent Villarruel drove to this parking lot and met with Ms. Rascon, Mr. Valadez, Mr. Arias, and another coconspirator named Estefan Olivas-Lasos. ² Mr. Valadez introduced Mr. Teran to Mr. Arias, who showed Mr. Teran cocaine which he was carrying in a white paper bag. Mr. Teran said that the bag did not contain the two kilo amount which they had agreed upon, and Mr. Arias responded that the rest was in his car. Mr. Teran returned to Agent Villarruel and told him that he had not seen the whole amount. Shortly thereafter an arrest signal was given, and Ms. Rascon, Mr. Valadez, Mr. Arias and Mr. Olivas were taken into custody. The white paper bag containing the drugs was found on the ground a few inches from where Mr. Arias had been arrested. Agents conducted an inventory search of Mr. Arias' car and discovered a weapon and a nylon bag containing drugs and currency. The cocaine in the white paper bag weighed almost 400 grams, and the nylon bag found in Mr. Arias' car contained about 119 grams of cocaine.

II.

Mr. Arias argues on appeal that his due process rights were violated when the lower court refused to allow Agent Villarruel to be cross-examined at trial about witness coaching that had allegedly occurred at a pretrial probable cause hearing. At the earlier hearing, several DEA agents who had been present at the drug transaction in undercover capacities testified about the events that took place there. Witnesses were not sequestered and agents who were not testifying were sitting in the courtroom. Counsel for Mr. Arias was subsequently told by other spectators that government agents who were spectators gestured at testifying agents, and that the agents changed their testimony as a result. Specifically, Mr. Arias' counsel received information that Agent Dennis Follett, who had conducted surveillance during the drug transaction, was coached by Agent Villarruel when asked whether Mr. Arias had the white paper bag in his possession at a particular time. In addition, Agent Gregory Salazar, who had videotaped the drug transaction from a surveillance van, was allegedly coached by Agent Follett when testifying about the direction from which Mr. Arias arrived at the restaurant parking lot with the white bag in his hand.

The court subsequently held a pretrial hearing on the coaching allegations pursuant to Mr. Arias' motions to strike the agents' testimony at the probable cause hearing, to preclude their testimony at trial, and to dismiss. Although the court did not determine whether the alleged coaching had actually occurred, it refused to strike the earlier testimony or to dismiss the charges. The court held that because the coached witnesses, who were to testify at trial, would "be subject to cross-examination on the testimony earlier given at the [probable cause] hearing," no due process violation would occur. Rec., vol. 8, at 51.

At trial, counsel for Mr. Arias began to cross-examine Agent Villarruel about his involvement in the alleged coaching at the probable cause hearing. The court sustained the government's objection on the basis of relevance. After the jury was excused for the day, defense counsel argued that the issue went to the credibility of the DEA agents, which was critical to the case. The court reiterated its decision to preclude the questions, stating that the matter was too collateral and that counsel could not hold a trial about the probable cause hearing. Rec., vol. 2, at 117-18. ³ Mr. Arias contends that in so ruling, the court committed reversible constitutional error.

The primary purpose of the right to confront adverse witnesses guaranteed by the Sixth Amendment " 'is to secure for the opponent the opportunity of cross-examination.' " Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting 5 J. Wigmore, Evidence Sec. 1395, 123 (3d ed. 1940)). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Id. at 316, 94 S.Ct. at 1110. Accordingly, a "defendant's right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination." United States v. Lonedog, 929 F.2d 568, 570 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991). Although the trial court may impose reasonable limits on cross-examination, see United States v. DeSoto, 950 F.2d 626, 629 (10th Cir.1991), defense "counsel should be allowed 'to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness,' " id. (quoting Davis, 415 U.S. at 318, 94 S.Ct. at 1111-12).

Questions directed at revealing that the testimony of a witness was coached are clearly relevant to a jury's assessment of the reliability of that witness. See, e.g., Geders v. United States, 425 U.S. 80, 89-90, 96 S.Ct. 1330, 1335-36, 47 L.Ed.2d 592 (1976). Nonetheless, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Here, the witness at whom the coaching inquiry was directed, Agent Villarruel, had not been coached. Instead, he was one of the agents who allegedly coached another witness. Moreover, the alleged coaching did not occur during trial, but took place at an earlier proceeding. The proposed cross-examination thus raised concerns about relevance and confusion of the issues. Rather than limiting the scope of cross-examination to address these concerns, however, the trial court prohibited all inquiry regarding the alleged coaching incidents.

We need not decide whether the court's ruling here denied Mr. Arias his Sixth Amendment rights because the error, if any, does not warrant reversal. In applying the constitutional harmless error analysis of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), to a Confrontation Clause violation, we must inquire whether, "assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.

Among the factors that we consider are "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and of course, the overall...