U.S. v. Gonzalez, 82-5366

• Decision Date: 21 November 1983
• Docket Number: No. 82-5366,82-5366
• Citation: 719 F.2d 1516
• Parties: 14 Fed. R. Evid. Serv. 931 UNITED STATES of America, Plaintiff-Appellee, v. Jose A. GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1516

719 F.2d 1516

14 Fed. R. Evid. Serv. 931

UNITED STATES of America, Plaintiff-Appellee, v. Jose A. GONZALEZ, Defendant-Appellant.

No. 82-5366.

United States Court of Appeals Eleventh Circuit.

Nov. 21, 1983.

Jose J. Larraz, Jr. (Court appointed), Miami, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Miami, Fla., Michael Hursey, West Palm Beach, Fla., Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and ATKINS ^*, District Judge.

ATKINS, District Judge:

Jose A. Gonzalez and Gilbert D. Morales were charged in a three-count superseding indictment with illegal possession of an automatic weapon, illegal transfer of an automatic weapon and conspiracy to possess and unlawfully to transfer a firearm. Morales plead guilty to Count III of the indictment. Gonzalez was convicted of all three counts. He raises issues dealing with double jeopardy, extra-judicial statements of Morales, and the sufficiency of the evidence. Finding no error in the trial proceedings and that the evidence supports the convictions, we affirm.

Double Jeopardy

On January 14, 1982, the first jury trial of Gonzalez began. The following day, during cross examination of Special Agent Hudson, the last government witness, the following colloquy occurred:

Q. Now, after you arrested Mr. Gonzalez, did you have an opportunity to search the Federal Government's criminal records banks to find out whether Mr. Gonzalez had a criminal record?

A. Yes, sir.

Q. And what did you find, Agent Hudson?

A. I found an FBI print-out indicating a previous arrest of cocaine, and marijuana in Dade County.

Q. And what, if any, was the end of that arrest?

A. The last word I got two days ago was on the phone that the file reflected no information. That was an ambiguous term, as well as you know. An information is like an indictment. I could not find out from the young lady who helped me whether they was telling me that no information had been filed, or whether it meant in the dictionary, no information. I don't know what the disposition of the case was. I was unable to learn. I got the impression he was not convicted of that.

Q. Didn't you also get the impression you don't know whether that is this Jose Gonzalez or not?

A. Yes, it is the same.

Q. It is the same?

A. Yes. It is based on the fingerprints I personally took of him, and sent to Washington, and compared by the Federal Bureau of Investigation with prints on file for 1980.

(T 191-92)

Defense counsel then requested a side bar conference and moved for a mistrial because the government had not previously told him about his client's prior arrest. The government argued, inter alia, that when defense counsel asks a question on cross-examination that goes beyond the limits of relevance as set forth in the Federal Rules of Evidence, ¹ he does so at his own peril. The Court also expressed its curiosity as to why defense counsel had asked this series of questions. (TR 193) The trial court recessed for the day shortly thereafter. (T 124-25)

The next morning, the government admitted that it had not physically handed defense counsel a copy of defendant Gonzalez' F.B.I. "rap sheet" which had arrived over two weeks earlier (TR 200, 201). Defense counsel, however, had been put on notice of such an arrest in an informal conversation with Agent Hudson several days before the trial. (T 200-03) When specifically asked by the Court whether his client had revealed his prior arrest during pre-trial interviews, defense counsel asserted the attorney-client privilege. (T 198)

The Court gave defense counsel the choice of two solutions (a) declare a mistrial or (b) "go ahead" with the current jury and give them a "[strong] instruction" directing that a "prior arrest is not to be considered in any way in determining guilt or innocence." Defense counsel announced that he opted for a mistrial.

The second trial commenced on January 19, 1983. Before the jury was sworn, defendant moved for a mistrial on double jeopardy grounds. The motion was denied.

Gonzalez concedes in his brief that "if a defendant moves for a mistrial to a large extent he cannot thereafter be heard to complain of a retrial." (page 18). He urges, however, the narrow exception articulated in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982):

Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion (Id. at 676, 102 S.Ct. at 2089).

Gonzalez contends that the non-disclosure of the "arrest evidence" was "a deliberate prosecutorial stratagem to abort the trial" (Appellant's brief, page 18) and reprosecution should have been barred. Evidence of prior arrests, during the government's case in chief, was clearly inadmissible as irrelevant and prejudicial. Only certain convictions under certain conditions are admissible for impeachment under Rule 609 of the Federal Rules of Evidence.

The government had a clear duty under the Standard Discovery Order and its assurances in the discovery letter of October 29, 1981 to supply the FBI arrest record promptly upon its receipt. They simply failed to do so. Such conduct should not be condoned. The United States Attorney should take effective remedial steps to avoid such inexcusable lapses.

It is another matter, however, to urge that such conduct, occurring prior to the selection of the jury in the first trial, was intentionally designed to abort the trial before that jury. There was no indication that the trial was going poorly for the government; the prosecutor therefore had no reason to prompt a mistrial. Moreover, the government gained no advantage by the mistrial since the evidence adduced at the second trial was the same as that used in the first trial. See Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824, 831, 54 L.Ed.2d 717 (1978); United States v. Opager, 616 F.2d 231, 234 (5th Cir.1980); United States v. Kessler, 530 F.2d 1246, 1255 (5th Cir.1976).

The negligent government action occurring here, which we criticize, does not reach the level of contumacious conduct necessary for a finding of prosecutorial overreaching. Compare United States v. Kessler, 530 F.2d 1246 (5th Cir.1976) with United States v. Broderick, 425 F.Supp. 93 (S.D.Fla.1977). But cf. United States v. Garza, 603 F.2d 578 (5th Cir.1979). We therefore find the appellant's double jeopardy argument to be without merit.

The Facts

During the course of a federal government investigation, Special Agent Rudy Pena, of the Bureau of Alcohol, Tobacco and Firearms (ATF), acting in an undercover capacity, was introduced by Alvaro Kim, an ATF informant, to Gilbert David Morales. (TR 85-86) After a series of meetings and conversations over the next two days, about the availability and price of machineguns and silencers, Morales introduced Kim to "a friend of mine namely, Jose." (TR 114) At trial, Kim testified that the man introduced to him by Morales as Jose seemed to be the defendant Gonzalez, but he was not sure. (TR 117) When Jose left the Morales residence that night, Kim saw him get into a late-model car like a Grand Prix or Chevrolet. (TR 115) There was a second person on the passenger side, and one in the back. (TR 115-16) Just after the man named Jose left, Morales told Kim that Jose was the person who would get what Agent Pena was looking for--the fully automatic weapon. (TR 117, 130)

At about 2:20 a.m. on September 18, 1981, Agent O'Dea looked through a periscope and observed a 1981 cream colored Buick drive into the Morales driveway and stop. (TR 136) Defendant Gonzalez got out of the automobile, looked to his right, looked to his left and reached into the vehicle to get a valise, or carrying case. (TR 137, 147) During the walk from the car to the residence, Defendant Gonzalez walked quickly and purposefully, the briefcase not moving much from his side and with his elbows in a locked position. (TR 137, 140-41) Agent O'Dea testified that Government Exhibit 4 was very similar to the type of tan briefcase that Defendant Gonzalez had carried into the house; Exhibit 4 had been found in the passenger seat of the vehicle at the time of the arrest of Defendant Gonzalez. (TR 138)

Agent Pena immediately placed a telephone call from the Howard Johnson's to Morales' residence at about 2:31 a.m. Morales answered the telephone; Pena told him that he wanted to find out about the transaction. Morales stated, "What a coincidence! I have just been delivered my weapon--'my lady.' " (TR 94) Agent Pena asked Morales to be more specific, and Morales replied, "I have what you want." Agent Pena asked if it was automatic, and Morales responded: "It is fully automatic." (TR 94) Agent Pena asked Morales about the quantity and stated that they had been talking about ten or fourteen weapons, but Morales was only talking about one. Morales said he could not discuss it on the telephone and stated, "I have to get rid of my people." (TR 94)

Agent O'Dea observed Defendant Gonzalez come out of the house, stop, and wave toward the house, with the briefcase moving about in a swinging motion. Defendant Gonzalez then got back inside the car. Agent O'Dea positively identified Defendant Gonzalez as the man he saw leave the car and go into the house. (TR 138)

After leaving the Morales residence, the three men in the car travelled slowly on the highway while they were being followed by Agent Hudson and the other agents. (TR 175-176) The three occupants of the car, including Defendant Gonzalez, were arrested shortly thereafter. (TR 155-6) In the meantime, Morales had delivered the machinegun to Agent Pena at the Howard Johnson's and was also arrested. (TR 95-96)

Pursuant to the arrest of the individuals in the car, Agent...