U.S. v. Gomez-Gallardo, GOMEZ-GALLARD

• Decision Date: 02 October 1990
• Docket Number: No. 89-30153,GOMEZ-GALLARD,D,89-30153
• Parties: 31 Fed. R. Evid. Serv. 475 UNITED STATES of America, Plaintiff-Appellee, v. Emilanoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 553

915 F.2d 553

31 Fed. R. Evid. Serv. 475

UNITED STATES of America, Plaintiff-Appellee, v. Emilano GOMEZ-GALLARDO, Defendant-Appellant.

No. 89-30153.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 6, 1990.

Decided Oct. 2, 1990.

Robert H. Gombiner, Nance, Iaria & Gombiner, Seattle, Wash., for defendant-appellant.

William H. Redkey, Jr., Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before TANG, NELSON and CANBY, Circuit Judges.

NELSON, Circuit Judge:

OVERVIEW

Defendant/appellant Emilano Gomez-Gallardo (Gallardo) was indicted and convicted for conspiracy with Jose Delacruz-Gutierrez (Gutierrez) to distribute cocaine. Gallardo appeals three alleged errors in his jury trial. He argues that Gutierrez was called as a witness in order to introduce otherwise inadmissible evidence, that the government introduced evidence of Gutierrez's guilty plea for illegitimate and highly prejudicial purposes and that the government elicited prejudicial and irrelevant evidence of Gallardo's drug use. We reverse the conviction and remand for new trial.

FACTUAL AND PROCEDURAL HISTORY

On the basis of an investigation by Agent James Baker with the assistance of an informant, "Lucky" Vrell, the government alleged that Gallardo, the appellant, and Gutierrez conspired to distribute cocaine between September 23 and 27, 1988. Gutierrez pled guilty to this charge.

The government's case against Gallardo was based on the testimony of Vrell, Baker and Gutierrez. Vrell testified that he had participated in drug deals with Gallardo and Gutierrez and that they were supposed to complete a deal on the night of September 27, 1988. Vrell also testified that he had used cocaine with Gallardo. On direct examination Vrell stated that he had not talked to Gallardo at all about the September 27 deal, although he recanted that statement on redirect.

Agent Baker testified at the trial that he had overheard a conversation between Vrell and a man who identified himself as Emilio arranging a drug deal. ¹ Baker also stated that he had surveyed Vrell's house on September 27 and that he had seen Gallardo arrive and spend about three hours. When Gallardo left the house Baker arrested him. Gallardo had no drugs in his possession and no cocaine connected to the alleged conspiracy was ever found.

Prior to Gallardo's trial, the government told the court that it did not expect Gutierrez to agree to testify. On the final day of trial, the government asked to call Gutierrez out of the presence of the jury. Under oath Gutierrez testified that he knew Gallardo. He admitted participating in one cocaine deal with Vrell but claimed that he had never participated in any cocaine transaction with Gallardo. Gutierrez stated that on September 27 his car was overheating and he had called Gallardo to meet him at Vrell's house to give him a ride. ² On the basis of this testimony the government decided to call Gutierrez.

On the stand in the presence of the jury, Gutierrez first testified that he had pled guilty to a conspiracy with the defendant to distribute cocaine. Gutierrez then repeated his testimony from earlier in the day, including his assertions of Gallardo's innocence and that Gallardo was at Vrell's house only because of the overheating car.

The government had three witnesses impeach Gutierrez's testimony and character. Agent Perry Skipton testified as to statements made by Gutierrez involving a different proposed sale of cocaine. Agent Bruce Stubbs testified about Gutierrez's involvement in a scheme to trade machine guns for cocaine. The government never claimed that Gallardo was involved in either of the schemes described by Agent Skipton and Agent Stubbs. ³ Finally Agent Samuel Soto testified that he had driven the car Gutierrez claimed was overheating and that there was no indication of any mechanical difficulties.

The defense presented no evidence, arguing only that the government had not proven its case. The defense did not object to the government calling Gutierrez as a witness, to the admission of his guilty plea into evidence or to the introduction into evidence of appellant's use of cocaine.

In closing arguments, the government stated that no question existed as to Gutierrez's guilt. It reviewed all the evidence in the case, closely examining Gutierrez's testimony and urging the jury to reject it as false. The jury convicted Gallardo. He was sentenced to 97 months imprisonment

to be followed by three years of supervised release. He timely appeals.

DISCUSSION

I. Standard of Review

Because none of the issues on appeal was raised before the district court, we employ a plain error standard of review. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989); Fed.R.Evid. 103(d). Under this standard, we notice errors only if they affect substantial rights. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). "Thus, in the absence of timely objection, only those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings will be corrected by this court." United States v. Smith, 790 F.2d 789, 793 (9th Cir.1986) (internal quotations omitted).

II. Government's Impeachment of Gutierrez

Gallardo claims that the government called Gutierrez as a witness for the sole purpose of impeaching him with otherwise inadmissible evidence. The defendant also argues that this was a highly prejudicial error requiring reversal even under the plain error standard. The government claims it called Gutierrez to "facilitate[ ] its proof of the elements of the crime charged."

Federal Rule of Evidence 607 permits the government to impeach its own witness. However, "the government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony." United States v. Whitson, 587 F.2d 948, 952-53 (9th Cir.1978); Kuhn v. United States, 24 F.2d 910, 913 (9th Cir.), cert. denied, 278 U.S. 605, 49 S.Ct. 11, 73 L.Ed. 533 (1928). "[T]he maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer by which the party is surprised." United States v. Crouch, 731 F.2d 621, 623 (9th Cir.1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 778, 83 L.Ed.2d 773 (1985) (internal quotations omitted). That is, impeachment is not permitted where it is "employed as a guise for submitting to the jury substantive evidence that is otherwise unavailable." United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 783, 102 L.Ed.2d 774 (1989) (internal quotations omitted); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984) (internal quotations omitted).

In evaluating the reason a witness is called, we determine whether the government examined the witness for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible. United States v. Hogan, 763 F.2d 697, 702 (5th Cir.1985); Peterman, 841 F.2d at 1479.

After carefully reviewing the trial transcript, we are convinced that the government did call Gutierrez for the primary purpose of impeaching him. ⁴ In determining the government's purpose, we examine its use of the evidence during the trial rather than any post-trial explanation.

The government argues that Gutierrez's testimony was intended to corroborate Vrell's testimony. Although part of Gutierrez's testimony did so corroborate, a review of the transcript indicates that the government did not use the testimony for corroborative purposes at trial.

In closing argument the government did not rely on Gutierrez's testimony in support of its case, but instead urged the jury to consider him a liar. At one point, the prosecutor specifically argued, "if you don't believe the testimony of Jose Delacruz-Gutierrez ... then you're entitled to conclude that the defendant was here to do a deal." Later in closing argument, the government reiterated:

Has the government proved beyond a reasonable doubt that the defendant conspired to distribute cocaine? Jose Delacruz-Gutierrez says no, that there was no conspiracy. Do you accept his testimony? Does it hang together? Does it Moreover, the government cannot claim that it intended to use Gutierrez's testimony to prove its case but was surprised by his testimony; it knew in advance that Gutierrez would testify falsely. ⁵

correspond to common sense or does it sound like he's just trying to get a buddy out of trouble?"

In sum, Gutierrez's testimony that the prosecution now claims was material in its proof of the case was never so argued to the jury. Instead, the government thoroughly discredited his testimony. ⁶ On this basis, and in light of the testimony itself, we are compelled to conclude that the government called Gutierrez for the primary purpose of impeaching Gutierrez's credibility to prove the substance of the charges against Gallardo. This is an illegitimate purpose.

We also find that the government's actions reached the level of plain error. The government's case was weak: Gallardo had not been caught with any...