U.S. v. Garcia, 75--2929
| Decision Date | 24 May 1976 |
| Docket Number | No. 75--2929,75--2929 |
| Citation | 531 F.2d 1303 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rafael C. GARCIA, a/k/a 'El Moto,' Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Nago L. Alaniz, San Diego, Tex., Michael Anthony Maness, Houston, Tex., for defendant-appellant.
Edward B. McDonough, Jr., U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GODBOLD, RONEY, and JAMES C. HILL, Circuit Judges.
We are called upon in this case to decide whether the defendant's Sixth Amendment right of confrontation was violated by the trial court's limitation of cross-examination of government witnesses as to the activities of a confidential informer, where the informer was a participant in the criminal transaction charged and a witness at trial, and whether the trial court erred in refusing to submit defendant's requested jury charges on the issues of knowledge and specific intent. Since we answer each of these questions in the negative, we affirm.
A jury convicted the defendant, Rafael C. Garcia, a/k/a 'El Moto', of possession with intent to distribute and distribution of cocaine in violation of Title 21, United States Code, Section 841(a)(1). 1 At the trial the prosecution presented, on its case in chief, only Agent Dracoulis of the Drug Enforcement Administration (DEA) and a chemist. The defendant testified in his own behalf, contradicting the account of Agent Dracoulis in important particulars and seeking to establish that he was merely accompanying his friend, Jesse, Gutierrez, and that he was unaware that the substance involved was cocaine. Defendant's wife also testified in his behalf. Jesse Gutierrez, a DEA 'confidential informer', was called as a witness on rebuttal by the government.
Agent Dracoulis testified that on September 27, 1974, he had a conversation with a confidential informer Jesse Gutierrez) whom he had employed to assist the government in its investigation. As a result of that conversation, Dracoulis, DEA Agent Eaks, and Gutierrez met with the defendant on September 30, 1974, at the Corpus Christi International Airport. Gutierrez introduced the agents to defendant as buyers from Arkansas and the four men proceeded in Gutierrez's car to a nearby parking lot. In the car defendant gave Dracoulis a package of cocaine and Dracoulis gave defendant $1200.00 in government funds. Defendant also gave Dracoulis a phone number of a bar where he could be reached with regard to a possible future deal.
On cross-examination defense counsel established that Dracoulis had known Gutierrez for not less than a year and that Gutierrez was usually paid for his employment by the government. on this particular occasion Gutierrez had been paid $250.00. Gutierrez's residence was also testified to by the agent. Defense counsel asked Dracoulis whether the government had made a deal with Gutierrez not to prosecute him in connection with possession of the 'stuff' arising out of an earlier incident. The answer was no.
However, the trial court sustained objections to questions regarding Gutierrez's relationship with the government, the existence of DEA files on Gutierrez, and inquiries as to other specific cases on which Gutierrez worked for the DEA. Nor was defense counsel permitted to ask where Dracoulis had first met Gutierrez or whether Dracoulis knew about any problems that Gutierrez might have had in San Diego, Texas. Finally, the trial court sustained an objection to a question as to whether Dracoulis knew that Gutierrez had been charged some months earlier with an offense involving 800 pounds of marijuana.
Defendant took the stand and denied that he knew a cocaine deal was taking place. He alleged that the cocaine belonged to Gutierrez and that Gutierrez had handed it over to Dracoulis and received the money. Defendant also stated that Gutierrez supplied the agent with a phone number.
In rebuttal Jesse Gutierrez, a/k/a 'Tenderete', took the stand and denied any part in the transaction. He stated that he was an informant for the DEA and that he had been paid $250.00 for this particular deal. The trial court refused to allow questions as to specifics of other cases on which Gutierrez had worked for the DEA or as to the manner in which he had been operating. In a colloquy with counsel at the bench, the Court told defense counsel that he could ask about any trade or deal that the government had made with Gutierrez in connection with this case and what the background for his assistance to the government might be. When asked if he had any other obligation to the government in connection with this case or that touched on his having to do this kind of work, Gutierrez responded in the negative. Finally, the trial court refused to allow questions with reference to an incident in which Gutierrez and his brother were involved until such time as defense counsel could show that it was relevant.
The defendant complains that his cross-examination of the government's witnesses was unduly restricted. He contends that the trial court's exclusion of testimony regarding Gutierrez's credibility, possible bias or prejudice and potentially damaging motives for assisting the government in setting up a transaction with the defendant amounted to a Sixth Amendment deprivation. Under the circumstances we think that the trial court's limitations were proper.
Alford v. United States, 1931, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, 629. The trial court in this case clearly recognized that the defense had a right to test the credibility of the informer. Defense counsel was permitted to establish the name and residence of the informer, the fact that he had been working for the drug administration for several months, and that he had been paid $250.00 for his participation in the case. Defense counsel was also permitted to ask whether or not the informer was under any other obligation to the government with regard to the case at hand. Insofar as the trial court limited cross-examination of Agent Dracoulis regarding the informer, the limitation occurred prior to the time when the informer himself and been called as a witness. Cf. United States v. Godkins, 5 Cir. 1976, 527 F.2d 1321.
Defendant complains most strongly with regard to the limitations placed on him in reference to Gutierrez's alleged involvement in an incident involving 800 pounds of marijuana. It is not suggested that Gutierrez had been convicted for any offense arising from such an incident. Thus, the incident was clearly inadmissible to show general lack of credibility. See Fed. Rules of Evidence, Rule 609; United States v. Banks, 5 Cir. 1973, 475 F.2d 1367, 1368. However, defendant argues that the incident was admissible to show that Gutierrez might falsely testify favorably to the government out of fear of prosecution--the so-called 'bias theory.' See United States v. DeLeon, 7 Cir. 1974, 498 F.2d 1327...
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