U.S. v. Candelaria-Gonzalez

• Decision Date: 18 February 1977
• Docket Number: CANDELARIA-GONZALEZ and M,No. 75-4013,75-4013
• Citation: 547 F.2d 291
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguelanuel Ledesma-Ruiz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 291

547 F.2d 291

UNITED STATES of America, Plaintiff-Appellee, v. Miguel CANDELARIA-GONZALEZ and Manuel Ledesma-Ruiz Defendants-Appellants.

No. 75-4013.

United States Court of Appeals Fifth Circuit.

Feb. 18, 1977.

Joseph A. Morgan, Howard Jefferson Gibbs, El Paso, Tex., for Candelaria-Gonzalez.

Michael R. Gibson, El Paso, Tex., for Ledesma-Ruiz.

John E. Clark, U. S. Atty., San Antonio, Tex., Michael T. Milligan, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

SIMPSON, Circuit Judge:

Appellants, Miguel Candelaria-Gonzalez (Candelaria) and Manuel Ledesma-Ruiz (Ledesma), were charged in a four count indictment with the following offenses: (1) conspiring to possess heroin with intent to distribute, in violation of Title 21, U.S.C., Section 846; (2) possessing heroin with intent to distribute, in violation of Title 21, U.S.C., Section 841(a)(1); (3) conspiring to import heroin, in violation of Section 21, U.S.C., Section 963; and (4) importing heroin, in violation of Title 21, U.S.C., Sections 952(a) and 960(a)(1). They were each found guilty as charged in a joint jury trial, and each was adjudged guilty and sentenced to twenty years confinement to be followed by a special parole term of twenty years.

In this appeal from their convictions, appellants claim that each of them was denied a fair and impartial trial, free from error in law, in violation of their Sixth Amendment rights. We determine that reversible error occurred at the trial and reverse both convictions.

The government's case against the appellants primarily rested upon the testimony of Ishmael Fuentes, an undercover agent for the federal Drug Enforcement Administration (DEA). He testified at trial that he was introduced to Ledesma by a confidential informant, and stated further that, after a period of undercover activities, he purchased heroin and cocaine from Ledesma. According to Fuentes, the purchase occurred when he took the contraband from a blue and white Chevrolet pickup truck located in the parking lot of the Martinique Lounge, in El Paso, Texas. Fuentes asserted that Ledesma gave him the keys to the pickup truck. Neither money nor contraband passed directly between the agent and the appellants, Fuentes stating that he was directed by Ledesma to leave the payment for the contraband in a red Chevrolet pickup truck also parked at the Martinique Lounge. No money was placed or found in the red pickup. Fuentes testified that he went through the motions of placing the money in the red pickup truck, but did not do so for fear of jeopardizing official government money. Candelaria was with Ledesma at the Martinique Lounge when the narcotics deal allegedly took place. Fuentes stated that Ledesma identified Candelaria as the person who had smuggled the drugs into the United States from Mexico. The government offered proof identifying Candelaria's deceased father as the registered owner of the blue and white Chevrolet pickup truck from which Fuentes stated he got the drugs. Shortly after agent Fuentes returned to appellants' table in the Martinique Lounge, other DEA agents entered the lounge and placed the appellants and Fuentes under arrest. ¹

In his defense Ledesma denied selling any drugs to the DEA agent, Fuentes. He stated that he knew Fuentes as a person who posed as a building contractor. Ledesma was the owner of a heating and air conditioning business of considerable size. He stated that Fuentes contacted him regarding houses Fuentes proposed to build in El Paso, suggesting that Ledesma do the heating and air conditioning work for such houses. He related that during one of their conversations about these houses, Fuentes asked him to furnish Fuentes with drugs. According to Ledesma, he told Fuentes that he had nothing to do with drugs, and that he could only assist Fuentes with heating and air conditioning installations. He characterized Fuentes' story about the drug sale as a total fabrication. The other appellant, Candelaria, did not testify, but he offered character witnesses, as did Ledesma. The same attorney represented both defendants at trial. They have separate counsel on appeal.

The crucial issue for the jury in this case rested on whose testimony should be believed, that of appellant Ledesma or that of DEA agent Fuentes.

Both appellants urge that error occurred in the admission of certain testimony over defense counsel's objections, and both contend that the court so mistreated defense counsel in the jury's presence as to require reversal.

We consider first Ledesma's contention that the district judge erroneously permitted grossly improper cross-examination of Ledesma's character witnesses. Several witnesses testified as to his general reputation for truth and veracity. The first such witness testified that such reputation was good. Government counsel on cross-examination asked if Ledesma's indictment would affect the witness's opinion of him and his reputation in general. Defense counsel objected, and the district judge ultimately sustained the objection, at the same time advising government counsel that it would be permissible to ask the witness if Ledesma's reputation would be affected if he were convicted of trafficking in narcotics. Government counsel posed this question to Ledesma's second character witness. The question was permitted over defense counsel's objection. ² Two other character witnesses for Ledesma were asked the same question, and counsel objected in each instance. Once the objection to the question was overruled, ³ on the other occasion the objection was sustained. ⁴

Control of the cross-examination of character witnesses as well as others is largely within a trial court's discretion. See Michelson v. United States, 1948, 335 U.S. 469, 480, 69 S.Ct. 213, 220-21, 93 L.Ed. 168, 176. "Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse." Id.

The district judge below abused this discretion when he permitted the prosecution to ask these hypothetical questions on cross-examination. Once the defendant places his reputation in issue, the prosecution has wide latitude to pursue the reputation of the accused on cross-examination. Id. at 479, 69 S.Ct. at 220, 93 L.Ed. at 175-76; Moore v. United States, 5 Cir. 1941, 123 F.2d 207. Nevertheless reputation denotes the formation of definite opinions by the community. See United States v. Lewis, 1973, 157 U.S.App.D.C. 43, 482 F.2d 632; 5 Wigmore, Evidence § 1611 (Chadbourn Ed. 1974).

The nature of the questions put to Ledesma's witnesses by government counsel, however, was a far cry from any concept of formulated community opinion. Rather, the questions posed sought speculative responses resting upon an assumption of guilt. Government counsel asked if Ledesma's reputation would be affected if he were convicted of the alleged crime. These hypothetical questions struck at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of fair trial. See Gomila v. United States, 5 Cir. 1944, 146 F.2d 372; Little v. United States, 8 Cir. 1937, 93 F.2d 401, 408. We think that the risk of prejudice to defendant's basic rights from such questions requires reversal. The questions put have no place in a criminal trial.

Testimony as to reputation should be, as the name indicates, based on repute, which is synonymous with hearsay. It is "established not by what one knows to be fact concerning another, but by what one has heard in the community about the person in question." (Citations omitted). United States v. Fink, 5 Cir. 1974, 502 F.2d 1, 5. See Michelson v. United States, supra, 335 U.S. at 477, 69 S.Ct. at 219, 93 L.Ed. at 174-75. Obviously the character witnesses offered by the appellant Ledesma had heard nothing in the community about his post conviction reputation when he had been convicted of nothing whatsoever. No one yet knew what people would say about him if he were convicted. ⁵

Government counsel also asked, on cross-examination, whether it would be inconsistent with the witness's knowledge of Ledesma if a DEA agent testified that Ledesma was known as a major narcotics trafficker. After instructing counsel to rephrase his question, the district judge allowed it. ⁶ This type of questioning was beyond the scope of permissible interrogation under Michelson v. United States, supra, and the Federal Rules of Evidence. The agent's testimony was raised to the status of accepted fact, and the presumption of innocence was destroyed in the process. See further, Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. The convictions here are due to be reversed for the court's repeated allowance of inherently prejudicial cross-examination by the prosecutor.

With considerable justification the appellants urge also that the district judge's hostility toward their defense counsel, manifested on a number of occasions during the trial, prejudiced them in the eyes of the jury. The trial judge gratuitously disparaged counsel several times before the jury. Indeed, the tone of the trial was set early on when the district judge sharply ruled on defense counsel's first objection. After the rule as to witnesses was invoked, counsel objected to Agent Fuentes, the government's principal factual witness, being allowed to remain at counsel table to assist the government. The district judge replied, "I have never heard of such an objection. Show me your authority for any such ridiculous assumption". ⁷ Other instances are cited when the district judge exhibited hostility toward the defense. He repeatedly corrected defense counsel in the presence of the jury, sometimes in an antagonistic manner. ⁸ Counsel was interrupted frequently during his direct examination of appellant Ledesma ⁹ and his character witnesses, ¹⁰ as well as...