U.S. v. Garza
| Decision Date | 26 February 1985 |
| Docket Number | No. 84-1504,84-1504 |
| Citation | 754 F.2d 1202 |
| Parties | 17 Fed. R. Evid. Serv. 1151 UNITED STATES of America, Plaintiff-Appellee, v. Ramon C. GARZA and Alfredo R. Menchaca, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Manuel G. Escobar, Jr., San Antonio, Tex., Rogelio Munoz, Uvalde, Tex., for Menchaco.
James E. Conley, III, David R. Weiner, San Antonio, Tex., for Garza.
Helen M. Eversberg, U.S. Atty., Daniel Maeso, Sidney Powell, Asst. U.S. Attys., San Antonio, Tex., Mildred M. Matesich, Jessica Dunsay Silver, Wm. Bradford Reynolds, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before GOLDBERG, POLITZ and WILLIAMS, Circuit Judges.
Ramon G. Garza and Alfredo R. Menchaca challenge their convictions by a jury of violations of 18 U.S.C. Secs. 241 and 242, and as to Garza, 18 U.S.C. Sec. 1503, claiming that the trial court erred in making certain evidentiary rulings, in giving its jury charge and in declining to collaterally estop parts of the prosecution. They further contend that the verdicts are not supported by sufficient evidence. As discussed infra, we find merit in some challenges but are persuaded that the trial errors did not result in an unfair or constitutionally infirm trial and, because of the overwhelming evidence of guilt, are appropriately categorized as harmless error. Accordingly, we affirm.
Shortly after assuming office as sheriff of Zavala County, Texas, Garza hired Menchaca as a special investigator. Menchaca could not be commissioned as a deputy sheriff because a prior conviction prevented him from being certified for that job. Two and a half years after Garza became sheriff he and Menchaca were named in a 15-count indictment charging violations of 18 U.S.C. Secs. 241, 242, 1512 and 1584. They were charged with conspiracy and substantive counts involving the denial of the civil rights of persons arrested and confined in the Zavala County jail. The indictment charged that appellants arrested persons without warrants and without probable cause, detained them for long periods, subjected them to repeated questioning, and failed to take them before a magistrate as required by Texas law. Appellants were also charged with one count of holding a person in involuntary servitude. Additionally, Menchaca was charged with obstruction of justice for trying to prevent a co-employee from informing the FBI about federal violations by appellants.
After an eight-day trial the jury convicted appellants of one substantive Sec. 242 count for holding a prisoner for 36 hours in an isolation cell measuring 32"' by 49", without lights, water, bedding or toilet. 1 Appellants were acquitted of seven substantive Sec. 242 counts, the involuntary servitude count and the obstruction of justice charge. The jury could not reach a verdict on the conspiracy count and on four of the Sec. 242 counts and a mistrial resulted.
Following the mistrial, the grand jury returned a six-count indictment charging the Sec. 241 conspiracy and the four Sec. 242 counts on which the jury had hung and, in addition, charging Garza with a violation of 18 U.S.C. Sec. 1503 for firing a deputy sheriff who had testified as a government witness at the first trial. Appellants were jointly tried on the first five counts and the jury returned verdicts of guilty on all charges. In a separate trial a few days later Garza was found guilty of the remaining Sec. 1503 count. This appeal follows.
Appellants maintain that the trial judge committed reversible error when he allowed the prosecution to introduce evidence of Menchaca's prior felony convictions, one for the illegal importation of meat in 1952 and one for the illegal importation of marihuana in 1954. 2 This issue was addressed by the court both before and during the trial.
By an in limine motion, appellants sought to prevent use of this evidence. At a pretrial hearing shortly before trial the court questioned the admissibility of the evidence but stated that the subject matter would be appropriate in the cross-examination of any character witnesses Menchaca might offer. The prosecutor argued that the evidence was relevant to prove intent, offering this syllogism. Menchaca's felony conviction prevented his certification as a peace officer. Only one so certified could validly arrest under Texas law. Menchaca violated Texas law when he made arrests so Menchaca intended to deprive those arrested of their civil rights. The court deferred ruling until the morning of trial. Prior to selecting the jury the court disposed of all pending motions, including that involving Menchaca's prior offenses. No definitive ruling resulted, the court merely repeated its prior inclinations and deferred ruling until necessary at trial.
The issue next arose during the testimony of Alfred Villarreal, general counsel for the Texas Commission on Law Enforcement Standards and Education. Over objection of defendants Villarreal testified that Menchaca was not qualified to be a certified police officer because "Mr. Menchaca maintains a prior felony conviction." The court immediately admonished the jury:
Ladies and gentlemen of the jury, at this time, I will caution you that even though this witness has testified that that is his belief as the basis of disqualification of Mr. Menchaca, until such time as it's actually connected up, you will just hold that in the back of your mind and not consider it except that there's been testimony about it. If it is not, in fact, proven up, then the Court will instruct you to disregard it entirely .... I will instruct you now that although you're aware of the testimony that ... Mr. Villarreal believes that there was, in fact, a felony conviction that would disqualify [Menchaca] from being a qualified peace officer, that until such time as that proof comes in, if it ever comes in, you're to only hold that in the back of your mind, and I'll give you instructions concerning how you may use that information.
The prosecutor later attempted to prove the conviction by offering copies of court records. Defendants vigorously objected arguing, inter alia, that the prejudicial effect far outweighed the probative value, citing Fed.R.Evid. 403. Concerned about the fairness of the evidence and the danger that its use might "cloud the issue" and "confuse the jury", the court ruled: "at this time, I'll admit them only for the purpose of the record and not allow the Government to introduce them further." No further effort was made to use the convictions in the evidence.
The final reference to the convictions came in the rebuttal phase of the closing argument when in response to defendants' attack on several government witnesses because of their prior convictions the prosecutor stated: "But half of the defense case has been testimony of a convicted felon, as well, and that's Mr. Menchaca." Counsel objected and the following colloquy ensued:
Villarreal's reference to the prior convictions was properly cabined by the court but the prosecutor's remark in closing argument was improper. The convictions were never proven. Not being proven they were not relevant. In United States v. Lemaire, 712 F.2d 944, 946-47 (5th Cir.1983), drawing upon and citing our en banc decision in United States v. Beechum, 582 F.2d 898 (5th Cir.1978), we held:
Indeed, under Beechum, evidence of an extrinsic offense is relevant to intent only if the act in fact occurred and the defendant in fact committed it. Thus, as the predicate to a determination that the extrinsic act is relevant, the government must offer proof establishing that the defendant committed the act. (citations omitted)
The trial court should have sustained counsel's objection and recalled for the jury the earlier admonition that it was not to consider that part of the testimony of Villarreal unless the convictions were later proven. The jury should have been instructed that the convictions had not been proven.
Appellants urge reversal of their convictions because the court would not permit Menchaca and other officers to testify about what they were told by way of complaints against those arrested. The evidence was barred as hearsay. This was error. The statements were offered in explanation of the arrests. The evidence was offered to prove what was said to Menchaca and the others, not to prove the truth of what was said. The evidence was offered as the fact of an assertion and not as assertion of a fact and was therefore not hearsay. Fed.R.Evid. 801(a), (c). Smith v. Gonzales, 670 F.2d 522 (5th Cir.1982); Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250 (5th Cir.1980).
Appellants next attack their convictions because the trial court disallowed proof of the arrest records of several government witnesses. The government moved in limine to block proof of the arrest records of six witnesses. At a pretrial hearing, defense counsel argued that the arrest records were admissible for impeachment purposes, to reflect on the witnesses' motive for testifying against the defendant police officers. The evidence was barred. This was error.
Typically, evidence of an arrest may not be used for impeachment of a witness; only evidence of convictions is permitted. Fed.R.Evid. 609. But the case before us is atypical. Here the defendants are police officers. Several of the witnesses had been arrested,...
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