U.S. v. Fernandez

• Decision Date: 24 September 1987
• Docket Number: D,No. 1476,1476
• Citation: 829 F.2d 363
• Parties: 24 Fed. R. Evid. Serv. 12 UNITED STATES of America, Appellee, v. Juan FERNANDEZ, Defendant-Appellant. ocket 87-1119.
• Court: U.S. Court of Appeals — Second Circuit

Page 363

829 F.2d 363

24 Fed. R. Evid. Serv. 12

UNITED STATES of America, Appellee, v. Juan FERNANDEZ, Defendant-Appellant.

No. 1476, Docket 87-1119.

United States Court of Appeals Second Circuit.

Argued Aug. 12, 1987.

Decided Sept. 24, 1987.

William E. Simon, Jr., Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., and Bruce A. Green, Asst. U.S. Atty., of counsel), for appellee.

Louis M. Freeman, New York City (Freeman, Nooter & Ginsberg, of counsel), for defendant-appellant.

Before WINTER and MAHONEY, Circuit Judges, and RE. ^*

PER CURIAM:

Juan Fernandez appeals from a judgment of conviction, entered by Judge Griesa (S.D.N.Y.) after a jury trial, for conspiracy to possess with intent to distribute marijuana. 21 U.S.C. Secs. 812 (1982 & Supp. III 1985), 841(a)(1) (1982), 841(b)(1)(B) (1982 & Supp. III 1985) and 846 (1982).

There was evidence at trial that Fernandez, along with named co-conspirator Hector Cedeno (a/k/a "Luis Gonzalez"), ¹ negotiated by telephone with DEA Special Agent Armando Marin to purchase 400 pounds of marijuana. The day after the phone negotiation, appellant and Cedeno were driven by Cedeno's mother, Carmen Cedeno, ² a cab driver who was driving her taxicab, to the apartment of co-defendant Marino Jerez. ³ Special Agent Marin and two other agents met Fernandez, and, according to Marin's testimony, Fernandez identified himself as the person with whom Marin had spoken over the telephone. After initial preparations were made for moving bales of marijuana into Jerez's apartment, the agents arrested appellant, Jerez, Hector Cedeno and Carmen Cedeno. The agents seized a loaded semi-automatic handgun from the apartment, and $85,000 in cash from the trunk of the car.

At trial, Carmen Cedeno testified about the activities of appellant and her son on the day of the arrest. Reference was made to the fact of her cooperation agreement, both in the government's opening statement and on direct examination. Defense counsel did not question her on cross examination concerning her cooperation agreement. On redirect, the government offered the agreement into evidence and it was admitted over objection. The agreement was not read into evidence, however, and it was not sent into the jury room.

The gun seized from Jerez' apartment was offered by the government as evidence. After hearing defense objection that the prejudicial impact of the evidence would outweigh its probative value because the gun belonged to Hector Cedeno, a co-conspirator who was not on trial, Judge Griesa admitted the gun.

Appellant also testified at trial, and his defense was that he knew about the drug transaction, but that he merely accompanied Hector Cedeno to the scene and had no stake in the venture. On cross examination, the government questioned Fernandez about previous narcotics negotiations with an undercover DEA agent and showed Fernandez a copy of an "official DEA report." This testimony was later stricken, the report was never admitted nor the jury informed of its contents, and the jury was instructed to disregard the whole line of questioning.

Finally, on the penultimate day of trial, when all that remained were the summations, Fernandez did not appear in court. Judge Griesa granted a one-day continuance and issued a bench warrant. On the following day, January 8, Judge Griesa inquired of Fernandez's attorney, a U.S. Marshall and a DEA agent whether Fernandez had been located. The attorney said that he had telephoned Fernandez hourly, without response. The Marshall described his unsuccessful efforts to locate Fernandez at home and his interviews with Fernandez's neighbors, which indicated that Fernandez might have fled his apartment. The DEA agent said that FBI records indicated that Fernandez had not been arrested. The judge then granted the government's motion for trial in absentia.

Appellant raises four issues on appeal. Only the first, his claim concerning the admission of the cooperation agreement, merits any extended consideration.

Appellant contends that the cooperation agreement between the witness Carmen Cedeno (the mother of Hector Cedeno) and the Government was improperly admitted into evidence. The rule in this circuit is that the existence of such an agreement may be adduced on direct examination of the witness who has entered into the agreement in order to preclude any inference of concealment by the Government, United States v. Edwards, 631 F.2d 1049, 1052 (2d Cir.1980), but the agreement itself may only be offered in evidence on redirect examination if the credibility of the witness has been challenged on cross examination. United States v. Borello, 766 F.2d 46, 56 (2d Cir.1985).

Here, there was reference, without objection, to the existence of the cooperation agreement in the prosecutor's opening statement and during the direct examination of Carmen Cedeno. The testimony on direct as to the existence of the agreement may have gone too far, since the witness actually stated that the Government agreed to "dismiss my charges if I said the truth." Tr. 105 (emphasis added). See Borello, 766 F.2d at 57 (before impeachment, witness may testify only about those portions of agreement that indicate witness's "motive for cooperating with the Government," not about those portions that bolster witness's credibility); United States v. Jones, 763 F.2d 518, 522 (2d Cir.1985) (Government may elicit testimony concerning "truth-telling portions of cooperation agreements" on direct examination only when there has been an attack on credibility during opening statements by defense counsel). But defense counsel did not object, and any error is therefore not reversible.

After cross examination, however, the cooperation agreement was put in evidence by the government over the defense's objection, although no portion of the agreement was ever read to the jury, and the record makes clear that the agreement was never sent into the jury room during its brief deliberations.

It is unlikely that Mrs. Cedeno's credibility was challenged on cross examination so as to call into operation the rule allowing admission of the cooperation agreement into evidence on redirect examination. It is true that defense counsel repeatedly asked Carmen Cedeno whether she had seen both her son and Fernandez knock on the trunk of her taxicab before placing a package therein at an early stage of their fateful journey. ⁴ Mrs. Cedeno's answers in response to this questioning ⁵ suggested a certain degree of confusion or equivocation as to whom she actually saw knocking. ⁶ Not every cross examination which attempts to undermine a witness's direct testimony, however, can fairly be considered an attack on credibility. Compare Fed.R.Evid. 608(a)(2) (evidence of truthful character admissible only after character of witness for truthfulness has been attacked by opinion or reputation evidence or otherwise). Later, in summation, on the other hand, defense counsel referred back to this very testimony and mentioned the cooperation agreement in a way that certainly did attack her credibility, ⁷ but a later attack on credibility does not make an earlier admission of "bolstering" evidence proper. See Borello, 766 F.2d at 57.

In any event, if it was error to allow the agreement to be put in evidence on redirect examination in the face of a defense objection to admissibility, we hold that the error was harmless. The defense contends that under Borello, such error should never be deemed harmless, lest our pronouncements on this question be rendered "ceremonial." See Borello, 766 F.2d at 57-58. We do not read Borello as stating such a rule. ⁸ In Borello, the agreement was entered into evidence over defense objection on the witness's direct examination, and the court refused to entertain consideration of the harmless error question where our considerable body of precedents on this question had been blatantly violated. The circumstances were different here, where the cooperation agreement was not introduced into evidence during Mrs. Cedeno's direct examination, and the Government apparently made a good faith determination that Mrs. Cedeno's credibility had been assailed on cross examination, when it had to anticipate at the time...