U.S. v. Castillo
| Decision Date | 26 March 1980 |
| Docket Number | No. 78-3551,78-3551 |
| Citation | 615 F.2d 878 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert CASTILLO, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Stephen Czuleger, Beverly Hills, Cal. (argued), for defendant-appellant; Terry W. Bird, Vincent J. Marella, Beverly Hills, Cal., on brief.
Fredrick M. Flam, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
On Appeal from the United States District Court for the Central District of California.
Before CHAMBERS, Senior Circuit Judge, ANDERSON, Circuit Judge, and PALMIERI, * Senior District Judge.
Castillo appeals his conviction following a jury trial of one count of manslaughter in violation of 18 U.S.C. § 1112, and of one count of conveyance of a dangerous instrumentality within a federal correctional institution in violation of 18 U.S.C. § 1792. We affirm the judgment of conviction.
We view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
In September 1977, Castillo was involved in an altercation while incarcerated at a federal correctional institution. Inmate Michael Flores was stabbed during the incident and died a short time later as a result of stab wounds.
The events leading to Flores' death apparently were set in motion on the evening before the stabbing, September 10. Castillo was visiting inmate Sleepy Munoz at Munoz' cubicle, along with another inmate Manuel Spiteri. Flores entered the cubicle, and asked Munoz to step outside. Once outside the cubicle, Flores and Munoz began to fight. Castillo and Spiteri stopped the fight, and Flores eventually departed after an exchange of apologies. Flores apparently remained unsatisfied, however, because he entered Munoz' cubicle later that night while Munoz slept and hit Munoz on the head several times with a pipe, inflicting painful damage.
News of the piping of Munoz increased tension considerably at the institution on the morning of September 11. Flores and a number of his friends began discussing the possibility of an armed confrontation with Castillo, Spiteri and their group of friends. Castillo spent the morning getting a tattoo in another inmate's cubicle with several of his friends present. By way of an intermediary, Flores informed Castillo that he wanted to fight. Castillo also received reports from other inmates that Flores and his group had gathered in the prison yard and were all wearing jackets despite warm temperatures, an indication that the group might be carrying concealed weapons.
According to Castillo, he gave a knife which had been offered to him by another inmate to his friend, "Buzz" Miller. As Castillo and Miller returned to their own unit, they were confronted by Flores and his group in a hallway. Other members of Castillo's group were also present. At this point, under Castillo's version, Miller handed him the knife.
A member of Flores' group approached Castillo and said that Flores wanted to fight. Castillo replied that he did not want to fight, and assumed a squatting position when Flores approached. After a brief discussion with Castillo, Flores returned to his group, conferred with a friend, and then came back over to Castillo and kicked him in the head. According to the government's evidence, another inmate grabbed Flores from behind and restrained him as Castillo proceeded to inflict at least three stab wounds. The scuffle lasted only a few seconds, and Castillo dropped the knife he had used to stab Flores almost immediately.
Other evidence critical to specific claims of error will be developed in subsequent sections.
Castillo has raised seven claims of error:
(1) Whether the deportation of two inmates who might have witnessed the stabbing violated Castillo's right to compulsory process;
(2) Whether hearsay statements admitted into evidence unfairly prejudiced Castillo;
(3) Whether the prosecution's comment on the invocation of the privilege against self-incrimination by two defense witnesses was improper and prejudicial;
(4) Whether evidence of an alleged attempt to suppress evidence by Castillo was improperly admitted;
(5) Whether a statement made by Castillo to a correctional officer was in the course of a plea bargain and improperly admitted against him;
(6) Whether the probative value of certain physical evidence admitted against Castillo was outweighed by its potentially prejudicial effect;
(7) Whether evidence was sufficient to convict Castillo on each count.
Castillo claims that his right to compulsory process was violated when the government deported two alien inmates who were present at the stabbing of Flores, and who probably witnessed the incident. Castillo relies upon United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), and subsequent cases.
According to testimony adduced at trial, one of the aliens, Francisco Ramos, was standing close by the spot where Flores fell after being stabbed, and assisted in carrying Flores to the hospital. Testimony also placed the other alien Jesus Gonzales, nearby in the hallway at the time that the altercation took place.
Mendez-Rodriguez, supra, established as the law of this circuit the proposition that the unilateral act of deporting aliens who are potential witnesses to a criminal act may deprive a defendant of rights guaranteed under the due process clause of the fifth amendment and the compulsory process clause of the sixth amendment. In Mendez-Rodriguez, a conviction for conspiracy to smuggle illegal aliens and for separate counts of transporting aliens was reversed where the government had deported three of the six aliens apprehended shortly after the defendant was arrested.
The gist of a Mendez-Rodriguez violation lies in the interference with the opportunity to formulate a defense. Conduct by the government which prevents a defendant from interviewing potential witnesses and making an independent judgment on which witnesses should be called deprives a defendant of the fundamental right to plan and present a defense to criminal charges. See United States v. Tsutagawa, 500 F.2d 420, 423 (9th Cir. 1974). The deportation of alien witnesses places the witnesses beyond the reach of compulsory process and unfairly interferes with preparation of a defense.
We cannot say that deportation in this case prevented counsel for Castillo from interviewing and selecting defense witnesses. Flores was stabbed on September 11, 1977. Ramos was transferred from the institution on October 22, and deported on October 26. Gonzales was transferred on February 21, and deported on March 6. Mendez-Rodriguez does not require that the government search out and produce witnesses whose testimony may be favorable to the defense. See 450 F.2d at 5. On two previous occasions, panels of this circuit have upheld convictions where the allegedly improper deportations did not occur until after the defense had been afforded a reasonable amount of time to interview the witnesses. In United States v. Romero, 469 F.2d 1078 (9th Cir. 1972) (per curiam), cert. denied, 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973), the panel found that the defendant had received an adequate opportunity to conduct witness interviews with aliens who were available up until the time that the defendant was indicted. In United States v. Lomeli-Garnica, 495 F.2d 313 (9th Cir. 1976), a potential witness was allowed to return to Mexico only six days after the defendant's arrest for possession of marijuana, and the panel there found that sufficient time to interview had been given the defendant.
The government's obligation to retain a deportable alien who may be a material witness is not easily defined in terms of its time element. While the government must insure that the defendant will have a reasonable opportunity to interview alien witnesses and determine their possible value to the preservation of an effective defense, it need not retain indefinitely every alien who may have some remote connection with alleged criminal activity. In the present case, both Ramos and Gonzales denied witnessing the stabbing in separate interviews with federal agents. Though the government apparently was in possession of other information tending to place both of the aliens at the scene of the stabbing, its judgment that the aliens would not have contributed significantly to trial preparation was not unreasonable and it apparently acted in good faith. Ramos was available for interviews until over one month after the incident, while Gonzales was available for approximately five months. While we are mindful of the realities of modern trial investigation, we do not find that the government "prevented" Castillo from gaining access to these two witnesses within the terms of Mendez-Rodriguez.
During the trial, prosecution witness Rand Neely was allowed to testify, over objection, to statements allegedly made by two of Castillo's confederates. In the first instance, Neely testified that shortly before Flores was stabbed he spoke with an inmate named Peterson, a friend of Castillo. When asked by Neely what was happening, Peterson allegedly replied that "(w)e are fixing to kill a Mexican." The court allowed the testimony in for the purpose of showing an agreement among the members of Castillo's faction, after receiving assurances from the government's attorney that sufficient evidence of a conspiracy would later be introduced. Neely also testified that he was threatened by an inmate named Jimmy Ortega, after being transferred to another institution, that if he testified against Castillo there would be "no place (he) could go or hide."
It was error to admit the Peterson statement. Hearsay statements are admissible under the co-conspirator exception, F.R.E. 801(d)(2)(E) only if made "in furtherance of the conspiracy." There is nothing...
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