U.S. v. Demchak

• Decision Date: 24 January 1977
• Docket Number: No. 76-1940,76-1940
• Citation: 545 F.2d 1029
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George DEMCHAK, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1029

545 F.2d 1029

UNITED STATES of America, Plaintiff-Appellee, v. George DEMCHAK, Jr., Defendant-Appellant.

No. 76-1940.

United States Court of Appeals Fifth Circuit.

Jan. 24, 1977.

P. D. Aiken, Fort Lauderdale, Fla. (Court-appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before TUTTLE, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

The jury convicted the defendant, George Demchak, Jr., on two counts charging violations of federal drug laws. At the trial Demchak's father testified briefly against him. The court limited cross-examination, and then subsequently struck the father's adverse testimony and instructed the jury not to consider it. Because this instruction called for mental discipline beyond what might reasonably be expected of a jury, we reverse for a new trial.

The Government indicted the defendant, his father (George David Demchak Sr.), and two others on five counts: one conspiracy count to possess with intent to distribute cocaine and phencyclidine (PCP); two counts of PCP possession; and two counts of PCP distribution. 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. The co-indictees each pled guilty. The defendant, after a period as a fugitive, elected to stand trial.

At trial, as the second witness to offer direct testimony against the defendant, the Government called his father. The difficulty with the attempted but limited cross-examination of the father that led to the eventual striking of his testimony resulted from his having pled guilty to the PCP conspiracy but not to the cocaine conspiracy or substantive counts. The court ruled that he had waived his rights with respect to the conspiracy count as to PCP, but would not allow questions about cocaine, about possession or distribution of PCP, or about events before the time framed by the indictment.

In direct testimony Demchak Sr. tied the defendant to the conspiracy. He said that in April 1975 he received a telephone call in which his son offered to sell him a pound of PCP for $5,000. He also told of a telephone call in May 1975 in which he had told his son the money was not yet available, and the son had expressed regret.

The transcript portrays rather confused exchanges of counsel and the court, in which the court announced that cross-examination was limited to the scope of the direct examination. The defendant was allowed to elicit the impeaching information that Demchak Sr. was a resident of the federal penitentiary but was not allowed to inquire into communications between father and son concerning PCP prior to the time framed by the indictment, or to ask about cocaine, or to elicit information concerning the distribution or possession of the PCP.

At the conclusion of Demchak Sr.'s testimony, the defendant moved for mistrial on the ground his rights to cross-examination and confrontation of witnesses had been unduly infringed, and in the alternative moved to strike the testimony. The court, without explanation in the record, denied the motion for mistrial but granted a motion to strike Demchak Sr.'s testimony.

The jury convicted the defendant of conspiracy and one count of possession of 53.6 grams of PCP.

We concur in the defendant's argument that once Demchak Sr.'s testimony against his son was heard by the jury, it was impossible to erase the prejudicial effect by striking it from the evidence and instructing the jury to disregard it. Demchak Sr. was no ordinary witness. He was the defendant's father. The jury could well presume that no father would swear a lie against his son. Much of the Government's case was designed to bolster the veracity of the witness. The prosecution's final witness, a Government agent, even produced a napkin on which Demchak Sr. had recorded the details of an illicit transaction.

The testimony of Demchak Sr. provided direct evidence of criminal activity by the defendant. From the telephone conversation he described, the jury could infer that Demchak Jr. possessed PCP, intended to distribute it, and was conspiring with his father to do so. In addition to the strong emotional impact of a father incriminating his son, the only other direct evidence against the defendant was the testimony of a witness closely associated with the father, who testified in great detail as to dealings between father and son. In assessing the significance of error, important considerations include the rights at stake, the prejudicial effect of the testimony, and the weight of the evidence pointing to a conviction. See United States v. Arenas-Granada, 487 F.2d 858 (5th Cir. 1973); Odom v. United States, 377 F.2d 853 (5th Cir. 1967). Judged by this standard the defendant is entitled to a new trial. He has a right to be judged by only admissible evidence. The prejudicial effect of the erroneously admitted testimony could hardly be greater. The only other direct evidence pointing to conviction came from one witness who had been a secretary romantically involved with the father. A substantial amount of her testimony about dealings between the father and son was outside the scope of the...