U.S. v. Calle
| Decision Date | 27 July 1987 |
| Docket Number | No. 86-7474,86-7474 |
| Citation | 822 F.2d 1016 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Cesar A. CALLE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Paul Morris, Coral Gables, Fla., for defendant-appellant.
J.B. Sessions, U.S. Atty., Gloria A. Bedwell, Asst. U.S. Atty., Cathy M. Motes, Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before GODBOLD and HILL, Circuit Judges, and ESCHBACH *, Senior Circuit Judge.
Appellant Cesar Calle brings this direct appeal from his conviction on charges of distribution and possession with intent to distribute approximately two kilograms of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Calle claims that the trial judge impermissibly restricted his counsel's cross-examination of the government's "star" witness, and also that the judge improperly restricted the testimony of his own witness whose testimony allegedly would have refuted that of the government's witness. Although we find no error regarding the limitation placed on cross-examination, we hold that the trial judge should have allowed the testimony of Calle's rebuttal witness. Finding that this error was substantially prejudicial to Calle's defense, we reverse appellant's conviction and remand for a new trial.
The charges against Calle arose from a drug buy set up by Officer Harold Todd of the Louisiana State Police, who at the time was working with a Drug Enforcement Administration (DEA) task force in New Orleans. Posing as someone interested in purchasing a large amount of cocaine, Todd was put in contact with Betty Stelter and Lee Martin. Todd made preliminary arrangements with Stelter and Martin, who then referred him to an individual later identified as Robert Joseph Garcia de Quevedo. Garcia agreed to sell Todd two kilograms of cocaine. They arranged for this transaction to take place at an interstate highway rest area in Alabama, just over the Florida state line.
Garcia and Martin arrived at the rest area in a white Chevrolet Cavalier automobile. After Todd showed Garcia the purchase money, approximately $100,000, Garcia asked Todd to follow him to a motel in Pensacola to get the cocaine. When Todd insisted that they had agreed to complete the transaction in Alabama, Garcia told Todd that he would return to the rest area in one hour with the drugs. Garcia and Martin returned an hour later driving a tan Toyota automobile. Garcia gave Todd the keys to the car and told him the cocaine was in the trunk. Todd opened the trunk and found a straw handbag containing two cellophane packages of what appeared to be cocaine. After Todd opened one of the packages to test the quality of the cocaine he gave the arrest signal and DEA agents converged on the scene to arrest Garcia and Martin.
While being transported to Mobile, Garcia decided to cooperate with the agents. He told them that a Colombian was waiting at a Pensacola motel to receive the money. Acting on this information, another DEA agent proceeded to the Airport Holiday Inn in Pensacola where he found the Chevrolet Cavalier originally driven by Garcia and Martin parked outside one of the rooms. The agent asked at the front desk and found that that room was registered to Cesar Calle. The agent knocked on the door to the room, and when it was opened by Calle, the agent placed him under arrest. An inventory search of the automobile revealed a jacket belonging to Garcia which contained a small vial of cocaine and several marijuana cigarettes.
Garcia was the primary government witness at Calle's trial. Garcia testified that he owned a business known as B & B Automotive located in Miami. Garcia also testified that he had been a moderate user of cocaine since high school. He stated that Lee Martin had been a truck driver for B & B Automotive, but Garcia claimed that he fired Martin when he suspected that Martin was involved in dealing cocaine. Garcia then testified that in June of 1985 Martin asked him to obtain a sample of cocaine, which Garcia agreed to do because he needed money for business and family reasons. Garcia claimed that he obtained a one ounce sample from Calle and that he discussed obtaining larger amounts of cocaine from Calle.
Garcia proceeded to testify about the transaction with Officer Todd. Garcia stated that after making initial arrangements with Todd he contacted Calle, who agreed to procure the two kilograms of cocaine in return for one-half of the profit made on the deal. Garcia stated that Calle and his wife brought the cocaine in a straw handbag to the motel in Pensacola and that the Chevrolet Cavalier was Calle's wife's car. Garcia testified that after the first meeting with Officer Todd at the rest area, he returned to the motel where he obtained the keys to the car containing the cocaine from Calle. He then returned to the rest area where he was arrested. Garcia testified that he decided to cooperate with the DEA agents out of fear that someone would be hurt. Garcia described his plea agreement with the government, under which he agreed to plead guilty to one count of conspiracy to distribute cocaine and testify against Calle in exchange for the government's agreement to drop the other four counts in the indictment and recommend to the court that Garcia receive a sentence of six months in jail followed by probation. 1
On cross-examination, Garcia acknowledged that his plea agreement required him to turn over to the government any documents in his possession relevant to drug trafficking. Garcia testified that he had complied with this requirement by giving his statement. He also acknowledged that the plea agreement required him to identify all assets which he had obtained from illegal narcotics activities, but Garcia claimed that he had no such assets. That response prompted defense counsel to ask Garcia whether he had filed income tax returns for the years 1981 through 1985, to which Garcia responded that he had. The government objected on relevance grounds, and the trial judge requested a sidebar conference with the attorneys. Defense counsel stated that he was attempting to impeach Garcia by showing that the witness had not declared a substantial amount of income allegedly earned from illegal narcotics activities. Counsel also indicated that he had another witness who would directly contradict Garcia's testimony that he had never before engaged in dealing substantial amounts of drugs. The government attorney responded that defense counsel was merely attempting to impeach the witness by proof of prior acts of misconduct, which is prohibited under Fed.R.Evid 608(b). The trial judge ruled that defense counsel was bound by Garcia's denials, and that counsel could not introduce extrinsic evidence to disprove Garcia's answers.
During the presentation of its case-in-chief, the defense called Lee Martin, who testified that he had been employed as a truck driver for Garcia and that during this time Garcia had regularly supplied his drivers with cocaine. Defense counsel then inquired if Martin had ever obtained cocaine from Garcia on occasions besides this one. Martin answered in the affirmative, but the government objected and requested another sidebar conference. The government attorney again complained that defense counsel was attempting to impeach Garcia by extrinsic proof of specific bad acts, unrelated to the drug charges in this case. Defense counsel responded that he was attempting to rebut Garcia's testimony that he was not a major drug trafficker. The trial judge allowed Martin's answer, but refused to allow defense counsel to inquire into specific instances of Garcia's alleged drug-related activities. The court then allowed Martin to testify that he had been present when Garcia "came up to look at" a kilogram of cocaine being sold by an individual named Rafael in Miami. Defense counsel then asked if Martin had ever seen Garcia with large amounts of cash, to which the witness answered affirmatively. The government objected on the same grounds discussed in the sidebar conference, and the trial judge halted this line of questioning.
To preserve the record for appeal, defense counsel made a proffer at the end of trial of what Martin's testimony would have been had the court not prohibited further questioning. Counsel stated that Martin would have testified that he had known Garcia since 1983 and had driven a truck for Garcia's company, which supplied stage equipment for a rock group. According to Martin, Garcia had two partners in this enterprise, one of whom was involved in drug trafficking. Martin further would have testified that Garcia was a habitual cocaine user who regularly gave out gram bottles of cocaine to his workers. Garcia frequently stayed at Martin's home in Chicago, and on these trips Garcia brought with him between five and six ounces of cocaine. During this time, Garcia owned six speedboats which Martin had repaired. Garcia also owned several trucks, and Martin would have testified that at a truck stop near Phoenix, Arizona, he witnessed Garcia make a down payment of $50,000 cash for one truck.
In addition, Martin would have testified that Garcia owed money to a company called Quick Form Rental for the rental of stage equipment in 1985, and that Garcia paid this debt with a briefcase containing $300,000 in cash. Garcia also paid one truck driver $6,000 in cash and another $5,000 in cash. During this period Garcia flew in privately chartered helicopters and paid cash for all his hotels and meals. Martin would have testified that on one occasion in Austin, Texas, Garcia ran out of cocaine for his personal use and flew to pick up additional cocaine for the remainder of the tour. Martin also would have testified that Garcia purchased a kilogram of cocaine from an individual named Rafael in...
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