U.S. v. Gonzalez

• Citation: 700 F.2d 196
• Decision Date: 28 February 1983
• Docket Number: No. 82-2012,82-2012
• Parties: , 12 Fed. R. Evid. Serv. 1063 UNITED STATES of America, Plaintiff-Appellee, v. Juan Octavio Pena GONZALEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 196

700 F.2d 196

78 A.L.R.Fed. 399, 12 Fed. R. Evid. Serv. 1063

UNITED STATES of America, Plaintiff-Appellee, v. Juan Octavio Pena GONZALEZ, Defendant-Appellant.

No. 82-2012.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1983.

L. Aron Pena, Edinburg, Tex., Gerald Goldstein (co-counsel), San Antonio, Tex., for defendant-appellant.

Anna E. Stool, Asst. U.S. Atty., James R. Gough, Chief Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before BROWN, GOLDBERG and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Juan Octavio Pena Gonzalez was charged in a four count indictment with conspiracy to import and importation of heroin in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 952(a) and 963, and with conspiracy to possess and possession of heroin with intent to distribute in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 841(a)(1) and 846. The district court dismissed the importation counts but a jury convicted him of conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin. Gonzalez now contends: (1) that the district court gave a jury instruction that "constructively amended" the indictment; (2) that the court committed reversible error by excluding testimony of Gonzalez' wife concerning statements he made to her; (3) that the court admitted a co-conspirator's statements against Gonzalez without obtaining independent evidence that he was a member of the conspiracy; (4) that the evidence was insufficient to convict him of conspiracy and possession with intent to distribute; and (5) that the court's questioning of witnesses denied him a fair trial. Finding no merit in these arguments, we affirm.

During July and August of 1981, Antonio Perez, a paid government informant, and Alan Tittle, a Drug Enforcement Administration agent, negotiated with Juan Guerrero for the purchase of large quantities of heroin. After several meetings, Perez and Guerrero met on August 19 in Laredo, Texas with Enrique Claddis, defendant Gonzalez' brother-in-law, and Alfonso Pena, Gonzalez' cousin, to complete the details of the heroin sale. Guerrero, the middleman in the transaction, had known Pena, who in turn introduced him to Claddis, the source of the heroin. ¹ Perez agreed to purchase fifteen kilos of heroin and Pena volunteered to bring the heroin from Laredo to McAllen, Texas in his Ford.

Later that evening, Claddis and Pena drove Guerrero to a shopping center in Laredo to show him who would be driving Pena's car to McAllen. They parked next to a pick-up truck occupied by Gonzalez, pointed him out to Guerrero, and told Guerrero that Gonzalez would drive the car containing the heroin. Gonzalez then waved and the trio drove off.

Gonzalez left for McAllen the next morning in Pena's white Ford. Pena followed in a pick-up. Upon reaching Roma, Texas, Gonzalez left the car and entered Pena's truck. Pena drove to a roadside park at which Guerrero soon arrived. Guerrero walked over to Pena's truck and mentioned that he no longer desired to make the "deal." Pena told him not to worry and Guerrero drove to La Feria to pick up Perez.

Meanwhile, Gonzalez returned to the Ford and drove to McAllen. After leaving the car in a parking lot, he drove with Pena around the McAllen area. They then returned to the parking lot and met Perez and Guerrero. Pena handed the Ford's keys to Guerrero and told him to "put the money in the same place the stuff is." Perez also testified that Gonzalez asked him "how long it is going to take" and Perez replied that it would last about one hour. Perez and Guerrero then drove the Ford to La Feria and met two agents posing as purchasers. After finding thirty three pounds of heroin in the car's rear panels, the agents immediately arrested Guerrero and later arrested Pena and Gonzalez in McAllen.

At trial, Gonzalez testified that he did not know why he was asked to drive the Ford to McAllen. He maintained that he drove the car as a favor to Enrique Claddis and that he wanted to see some farm implements in McAllen. Gonzalez also testified that he was parked at the Laredo shopping center because he had promised to meet Claddis at a nearby restaurant for dinner.

Constructive Amendment of the Indictment

Gonzalez first attacks a jury instruction regarding requisite proof of knowledge under 18 U.S.C. Sec. 841(a)(1). The instruction was a reply to the jury's written inquiry whether "it constitute[s] possession under Count 4 if Gonzalez knew there was contraband in the car but did not know it was heroin." After discussing this inquiry with the prosecution and defense, the court instructed the jury that it could convict Gonzalez for possession of heroin if it believed beyond a reasonable doubt that he "knew that there was some controlled substance in the car, whether or not he knew it was actually heroin or some other drug or narcotic...." ² The court also defined "controlled substance" as "any drug or narcotic that falls within [the Act's] prohibition."

Contrary to Gonzalez' argument, the government is not required to prove that a defendant knew the exact nature of the substance with which he was dealing; it is sufficient that he was aware that he possessed some controlled substance. Thus, we have approved an instruction that "a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know what controlled substance he possesses." United States v Rada-Solano, 625 F.2d 577, 579 (5th Cir.), cert. denied, 449 U.S. 1021, 101 S.Ct. 588, 66 L.Ed.2d 482 (1980). See also United States v. Jewell, 532 F.2d 697, 698 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Such an instruction does not encourage the jury to convict a defendant for possessing some controlled substance carrying a lesser penalty than heroin when, as here, the substance found in the car concededly was heroin and there was no evidence that Gonzalez believed the car contained any other controlled substance. The court's supplemental instruction thus was an accurate statement of the law. ³

Exclusion of Wife's Testimony

Gonzalez contends that excluding his wife's testimony about statements he had made to her the evening before and the morning of his arrest was reversible error. The excluded testimony was that Gonzalez had told his wife that her brother "had asked him to bring that car down [to McAllen] and that he was going to take advantage of the situation and look for the machinery." The trial court found it to be hearsay and inadmissible "for any purpose." Gonzalez now argues that the statement was admissible because: (1) it was not offered "to prove the truth of the matter asserted," see Rule 801(c); (2) it showed that he intended to act in accordance with his statement, see Rule 803(3); and (3) it was a prior consistent statement offered to support his testimony and to rebut the government's charge of fabrication, see Rule 801(d)(1)(B).

We first must determine whether Gonzalez preserved any error for our review under Rule 103(a)(2). After the wife's testimony was asserted to be hearsay, Gonzalez' counsel stated that the testimony was being offered "only for what he may have told her." During the later offer of proof, defense counsel asked the wife whether she knew for a fact whether or not the statement was true and she replied "yes." Counsel then engaged in the following colloquy with the judge.

MR. PENA: That's all, your Honor. Your Honor, I offer not so much her testimony as to whether or not this was true, but only the fact that the husband told her he was going to leave for this purpose. Again, my offer is not so much as to the truth of the matter but only that her husband told her this the night before and the day that he left.

THE COURT: How would it be relevant to the case that he told her if it's not for the truth of it? What relevance does that have if he told his wife he was going?

MR. PENA: It supports his testimony, whether believable or not, that he was coming for some other reason but to deliver drugs.

Despite counsel's question to the wife regarding the statement's truth, his subsequent exchange with the court indicated that the statement was not offered for its truth but was offered to support Gonzalez' own testimony and to rebut the government's charge of fabrication. Counsel did not specifically rely on Rule 801(d)(1)(B), but his explanation was sufficient "to assist the trial judge in making a rational determination of its admissibility." C.B. Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir.1978). As such, counsel preserved this theory of admissibility for our review. Because we agree that the testimony was admissible under this theory, we do not decide whether Gonzalez preserved the other two theories for appellate review.

Rule 801(d)(1)(B) provides that a statement is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive." Gonzalez' statement to his wife should have been admitted under this rule. Gonzalez offered his wife's testimony in response to the government's evidence and in anticipation of the government's inevitable attack on his own testimony. Because the implication of the government's evidence necessarily was that Gonzalez had fabricated his defense of lack of criminal intent, Gonzalez should have been permitted to introduce evidence of his prior consistent statement to his wife. See United States v. Parry, 649 F.2d 292, 295-96 (5th Cir.1981).

But this was not reversible error whether measured by the "reasonable doubt" or the "substantial influence"...