U.S. v. Hernandez
| Citation | 646 F.2d 970 |
| Decision Date | 01 June 1981 |
| Docket Number | No. 79-5684,79-5684 |
| Parties | 8 Fed. R. Evid. Serv. 794 UNITED STATES of America, Plaintiff-Appellee, v. Anthony HERNANDEZ, Defendant-Appellant. . Unit B |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Don S. Cohn, Robert C. Hill, Miami, Fla., for defendant-appellant.
Lynn Hamilton Cole, Judy S. Rice, Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before MORGAN, ANDERSON and THOMAS A. CLARK, Circuit Judges.
Appellant Anthony Hernandez was convicted of three counts: conspiracy to possess methaqualone (a Schedule II controlled substance) with intent to distribute in violation of 21 U.S.C.A. §§ 841(a)(1) and 846 (1972), possession with intent to distribute methaqualone in violation of 21 U.S.C.A. § 841(a)(1) (1972), and distribution of methaqualone in violation of 21 U.S.C.A. § 841(a) (1) (1972). Appellant asserts four errors: (1) the district court erred in admitting evidence which had been illegally seized and ordered suppressed. The court admitted the evidence for the limited purpose of impeaching or rebutting appellant's trial testimony; (2) the district court erred in not declaring a mistrial when the prosecutor's questions allegedly forced appellant's counsel to advise appellant, in the presence of the jury, to assert the privilege against self-incrimination; (3) the court erred in admitting co-conspiratorial hearsay without satisfying the United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), standard; and (4) insufficiency of the evidence to support the conviction. We affirm the judgment of the district court.
The facts, viewed in the light most favorable to the government, show that appellant's co-defendant Adrian Koutrumbas 1 contacted Lowell Miller, an undercover agent for the Drug Enforcement Administration, to discuss the sale of a quantity of quaalude (methaqualone, a Schedule II controlled substance) tablets. Several discussions and meetings ensued. Finally, on March 29, 1979, Koutrumbas arranged to meet with agent Miller at the Greek Village Restaurant in Tarpon Springs, Florida. During the meeting, Koutrumbas gave Miller three sample tablets of methaqualone and Miller agreed to purchase 50,000 pills. On April 4, Koutrumbas told Miller that his friend from Miami had brought the tablets into town and they were ready to close the deal. The purchase was arranged for the following day, April 5, at 4:00 p. m. at the Greek Village Restaurant.
The exchange actually took place at the Deep Disco Lounge located a short distance from the Greek Village Restaurant. The agents met Hernandez in the rear of the Deep Disco. During the meeting, appellant retrieved three decoratively-wrapped packages from his pick-up truck and put them in the agent's car. As he did so he said as to the first package, "this is for your mother," and then, "this is for your father." The agents also testified that he pointed to the packages and said, "twenty-four, twenty-four, and one," indicating the total number of 49 or 49,000 tablets, the agreed upon quantity purchased. The packages were later found to contain 49,000 quaaludes. Thereupon the agents placed appellant and Koutrumbas under arrest. Following the arrest, Agent Miller asked appellant whether he knew what was in the packages, to which he replied, "yeah."
Following the arrest, the agents seized a briefcase from appellant's truck. The briefcase contained a variety of pills, some of which were quaaludes like the ones in the packages. The district court, however, ordered the briefcase and its contents suppressed as the products of an illegal search and seizure.
During the trial appellant took the stand in his own defense. He testified that he lived in Hialeah, Florida, and was employed as a sales representative for a seafood supplier. He testified that he left Hialeah at about 5:00 a. m. on April 5 and drove to Tarpon Springs to meet Koutrumbas to discuss the possibility of supplying Koutrumbas and his associates with seafood on a regular basis. He testified that he spent the afternoon with Koutrumbas, that Koutrumbas had asked him to load into his truck three "gifts" to be delivered to some friends later that day, and that Koutrumbas said that the packages contained Greek statues which were too heavy for him to lift due to his bad back. The gifts turned out to be the three packages of quaaludes. Later in the afternoon, appellant and Koutrumbas returned to the Greek Village Restaurant, but Koutrumbas directed appellant to park his truck in the rear of the Deep Disco Lounge. When the agents arrived, Koutrumbas asked appellant to give the "gifts" to his "friends." Appellant admitted to "ad libbing" as he transferred the packages from his truck to the agent's car, saying this is for your mother and father, but denied mentioning a series of numbers during the exchange. As to his knowledge of the true contents of the packages, he testified on direct examination as follows:
Q. And did Mr. Miller ask you a question whether you had knowledge of what was in those boxes?
A. He had asked me, "You know what's in those boxes?" And I had I believe, sir, that I said, "I think so."
Q. Had the boxes ever been opened and shown to you?
A. No, sir. The gifts were never when I delivered the gifts to Mr. Miller, they were never opened in front of my eyes.
Q. Now, thinking back, what was your thought as to the contents of those boxes when Agent Miller asked you what was in them?
A. Greek statues.
Q. Did you ever have the knowledge or the intent at any time while you were in Tarpon Springs to distribute any controlled substances?
A. No, sir.
(Record, vol. III at 24-25).
On cross-examination, the Assistant United States Attorney pressed appellant on his familiarity with quaaludes or methaqualone:
Q. Have you ever seen methaqualone before?
A. I've seen yes, I've seen pills yes but no distinction. I couldn't
Q. Do you know what is commonly termed or called a "quaalude"?
A. I've heard of the word.
Q. Did you hear your counsel ask witnesses today and yesterday about tablets with markings "Rorer 714" on them?
A. Yes, ma'am.
Q. And he asked that in asking them to describe a methaqualone tablet with "Rorer 714" on it, do you recall that?
A. Vaguely, yes, ma'am.
Q. Have you ever seen a white tablet with "Rorer 714" marked on it?
A. Yes, I might have seen a white tablet. The markings I could not tell you about.
Q. Did you see any white tablets on April 5th, 1979?
A. No, ma'am.
Q. No white tablets at all?
A. No, ma'am.
Q. Is it your testimony that you saw no methaqualone or quaalude tablets on that day in question?
A. On April the 5th, ma'am?
Q. Yes.
A. No, ma'am.
Q. Mr. Hernandez, if you saw them, would you recognize them?
A. No, ma'am.
Q. Mr. Hernandez, have you ever had any methaqualone or quaaludes in your possession?
MR. ENGEL: I'm going to object to that. He doesn't I'm going to tell him to take the Fifth Amendment at this time. I'm going to ask for a mistrial. She's asking him if he ever had something at some prior occasion that might constitute a crime before this Court and Jury.
I'm making a motion for mistrial, Your Honor. I would like to approach the Sidebar.
(Record, vol. III at 68-70). At this point, a bench conference was held. The trial court ruled that the question was a proper one for cross-examination but agreed with defense counsel that it was broad enough in scope to permit the appellant to invoke his Fifth Amendment privilege against self-incrimination; however, he denied appellant's motion for a mistrial. The government agreed to withdraw the question and phrase it more narrowly. The cross-examination continued:
BY MRS. COLE:
Q. Mr. Hernandez, on April 5th, 1979, did you have in your possession tablets of methaqualone or quaaludes?
A. I might have had them, but I wasn't of knowledge of it.
Q. Did you ever have possession of quaaludes or methaqualone tablets other than what has been referred to in the boxes marked as Government's Exhibits 3-A, B, and C?
A. Could you repeat that, ma'am?
Q. Did you ever have possession of methaqualone tablets or quaaludes in your possession on April 5th other than what has been the subject other than what was included in the boxes entered as Government's evidence 3-A, 3-B, and 3-C?
A. I might have had, but no knowledge of it.
(Record, vol. III at 75-76).
The government then produced the briefcase seized from appellant's truck. He identified the briefcase as his and admitted that white tablets bearing the inscription "Rorer 714" were his sleeping pills. Furthermore, on rebuttal a DEA agent, Baggett, testified that the tablets had been seized from appellant's truck and were identical in physical appearance and inscription to the tablets in the three packages. Appellant's attorney objected several times to the production and admission into evidence of the briefcase and its contents on the ground that they were not proper vehicles for impeachment. The district court overruled all of his objections.
The rule governing the admission of evidence illegally seized and otherwise subject to suppression for purposes of impeaching the accused's trial testimony has experienced a lengthy evolutionary process. It is appropriate to examine in some detail the prominent Supreme Court decisions on this subject because the facts in this case highlight the tension between the first decision on the subject and the most recent.
In Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), the defendant took the stand and denied any knowledge of the contents of the packages which he was carrying. They actually contained cocaine. On cross-examination, the government asked the defendant wh...
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