U.S. v. Gomez-Lemos, GOMEZ-LEMO
| Decision Date | 16 October 1991 |
| Docket Number | GOMEZ-LEMO,D,No. 89-2166,89-2166 |
| Citation | 939 F.2d 326 |
| Parties | 33 Fed. R. Evid. Serv. 683 UNITED STATES of America, Plaintiff-Appellee, v. Nelson Bernardoefendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert W. Donaldson, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Juan A. Mateo (argued), Detroit, Mich., for defendant-appellant.
Before MERRITT, Chief Judge, and MARTIN and NELSON, Circuit Judges.
Two of the government's witnesses in this drug prosecution, Cesar Barraza and Edeardo Osorio, testified before the grand jury but refused to testify at trial. Over defendant's objection, the district court allowed the uncross-examined grand jury testimony of these two alleged co-conspirators to be read into evidence pursuant to Fed.R.Evid. 804(b)(5), one of the residual exceptions to the hearsay rule. In light of the Supreme Court's recent rulings in Idaho v. Wright, --- U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), and Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), we conclude that this ruling violated the Confrontation Clause and we therefore reverse defendant's conviction and remand for a new trial.
In a 1986 sting operation, the Drug Enforcement Administration targeted Alex Cerna as the leader of a large drug importation ring. While the DEA monitored his activities, Cerna planned and carried out a drug smuggling scheme to import 576 kilograms of cocaine and 17,300 pounds of marijuana into Grosse Isle, Michigan by airplane from Columbia. It was a well-planned DEA investigation. Even the pilot and crew of the plane who flew in the drugs for Cerna were undercover DEA agents. After the plane landed on September 3, 1987, the drugs were unloaded and moved to a warehouse. On September 6, 1987, while 400 of the 576 kilograms of cocaine were being loaded into a van, law enforcement personnel entered the warehouse and arrested six people, including alleged co-conspirators Cerna, Osorio, and Barraza. Although DEA agents did not find defendant at the warehouse, they later arrested him at a nearby hotel where he and the others arrested at the warehouse were staying. At trial, the government presented evidence that the cocaine being loaded into the van at the time of the police raid belonged to defendant and was to be distributed by his alleged agents in New York.
In exchange for a reduction in his sentence from 20 to 12 years, alleged co-conspirator Cerna testified in person at trial against defendant and was subject to cross-examination. He stated that defendant owned the 400 kilograms of cocaine being loaded into the van at the time of the police raid. Cerna testified that in late August 1987 he arranged transportation for a large load of cocaine destined for the United States. A Columbian partner apparently bought the drugs in Columbia. Cerna testified that on August 31, 1987 he received a phone call from defendant's wife stating that defendant urgently needed to speak to him. When Cerna called defendant, defendant allegedly told Cerna that part of the drug shipment belonged to him and demanded to know where the plane containing the drugs would land. Cerna's partner in Columbia confirmed the fact that some of the cocaine belonged to defendant. Informed of animosity that existed between Cerna and defendant due to a prior drug deal, Cerna's Columbian partner told Cerna that he did not have to deal directly with defendant and that defendant's agents would pick up the cocaine. Cerna agreed to this arrangement and called defendant to tell him to bring his drivers to Toledo, Ohio.
The government also called alleged co-conspirator Cesar Barraza to testify against defendant. Although Barraza testified before the grand jury, at trial he stated that he wanted to plead the fifth amendment. The District Court ordered him to answer the questions. When Barraza still refused to testify, the District Court apprised Barraza that he had to testify pursuant to his plea agreement and that he would be sentenced separately for contempt unless he cooperated. After holding Barraza in contempt for refusing to answer its questions, the court found Barraza unavailable pursuant to Fed.R.Evid. 804(b)(5) and admitted his hearsay testimony given without cross-examination before the grand jury.
Barraza's grand jury testimony provided support for the theory that defendant owned part of the cocaine that Cerna imported and that defendant planned to distribute it in New York. Barraza stated that he met defendant for the first time while playing soccer on Miami Beach. According to Barraza, defendant asked Barraza if he would like to make some money by driving Frank Turek, defendant's alleged partner in the drug deal, around New York. Barraza was familiar with the city and agreed to leave whenever defendant asked.
Barraza further testified before the grand jury that several days after initially meeting defendant, he and defendant flew together to Toledo, Ohio, where they were supposed to meet Frank Turek. According to Barraza, defendant flew under the name "Hazbun." Instead of meeting Turek in Toledo, they met two of defendant's associates. The group then drove from Toledo to Dearborn, Michigan, where Turek was waiting. At that point, Turek told Barraza of the plane load of drugs and informed him of his duties: Barraza was to drive Turek and the cocaine to New York. Apparently, Turek did not want to drive because he was in the U.S. illegally. Barraza stated that, after spending a few days in a hotel in Dearborn with defendant, Turek, and several others, he accompanied the group to a warehouse in order to pick up the cocaine. The police arrested him in the raid on the warehouse.
Alleged co-conspirator Edeardo Osorio, Barraza's cousin, also testified before the grand jury and the government called him as a witness at trial. Like Barraza, Osorio was arrested at the warehouse and pleaded guilty under a Rule 11 agreement which required his cooperation. At trial, Osorio also refused to testify, pleading the fifth amendment. The District Court told him that he had to answer the court's questions pursuant to his plea agreement. After repeatedly requesting that defendant answer its questions, the District Court held Osorio in contempt, found him unavailable pursuant to Fed.R.Evid. 804(b)(5) and admitted his hearsay testimony given without cross-examination to the grand jury.
Like Barraza, Osorio testified before the grand jury that he met defendant while playing soccer on Miami Beach. He said that defendant telephoned him and offered him approximately $1000 if he would fly to Washington, D.C., pick up a van, and drive it to Detroit. Osorio agreed and flew to Washington where he met a person defendant allegedly told him to meet at the airport. The two of them picked up a van took it to a shop where repairs were made, and then Osorio drove to Michigan with the person he met at the airport. Arriving in Dearborn, Osorio and his traveling companion met defendant at a hotel where defendant and others, including Barraza, were staying. After spending some time in the hotel, Osorio drove the van to the warehouse where the police arrested him in the raid.
Although some law enforcement personnel testified, co-conspirators Cerna, Barraza, and Osorio provided the essential testimony which tended to prove that defendant owned the 400 kilograms of cocaine. The District Court made no finding establishing that defendant prevented either Barraza or Osorio from testifying at trial.
The District Court admitted the testimony of co-conspirators Barraza and Osorio under Fed.R.Evid. 804(b)(5), the residual exception to the hearsay rule applicable when a declarant is unavailable. This rule permits introduction of hearsay evidence not covered by a specific exception "but having equivalent circumstantial guarantees of trustworthiness" where (1) "the statement is offered as evidence of a material fact," (2) it is more probative than any other evidence that the proponent could reasonably obtain, and (3) "the general purposes of [the Federal Rules of Evidence] and the interests of justice will best be served by admission of the statement into evidence."
Defendant contends that introduction of Barraza and Osorio's grand jury testimony violates his sixth amendment right of confrontation and the requirements of Fed.R.Evid. 804(b)(5). We agree with defendant that the Confrontation Clause prohibits the introduction of the two witnesses' testimony.
In relevant part, the sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." This right of confrontation and cross-examination of adverse witnesses is deeply rooted in our legal culture. See Coy v. Iowa, 487 U.S. 1012, 1015-16, 108 S.Ct. 2798, 2799-2800, 101 L.Ed.2d 857 (1988). "There are few subjects ... upon which [the Supreme Court] and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).
The right to confront and cross-examine adverse witnesses accomplishes both symbolic and functional goals. First, the Confrontation Clause advances the perception of fairness by "ensuring that convictions will not be based on the charges of unseen and unknown--and hence unchallengeable--individuals." Lee, 476 U.S. at 540, 106 S.Ct. at 2062. Second, the Confrontation Clause promotes reliability in criminal trials. As the Supreme Court has noted, confrontation
(1) insures that the witness will give his statements under oath--thus impressing him with the...
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