U.S. v. Hernandez, 1212

• Decision Date: 27 November 1978
• Docket Number: D,No. 1212,1212
• Parties: 3 Fed. R. Evid. Serv. 391 UNITED STATES of America, Appellee, v. Jesus HERNANDEZ, Defendant-Appellant. ocket 78-1122.
• Court: U.S. Court of Appeals — Second Circuit

Page 346

588 F.2d 346

3 Fed. R. Evid. Serv. 391

UNITED STATES of America, Appellee, v. Jesus HERNANDEZ, Defendant-Appellant.

No. 1212, Docket 78-1122.

United States Court of Appeals, Second Circuit.

Argued July 20, 1978.

Decided Nov. 27, 1978.

Archibald R. Murray, The Legal Aid Society, New York City (Jonathan J. Silbermann, New York City, of counsel), Federal Defender Services Unit, for defendant-appellant.

Mary McGowan Davis, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. New York, Brooklyn, N. Y.), for appellee.

Before MESKILL, Circuit Judge, and DUMBAULD ^* and PORT, ^** District Judges.

PORT, Judge:

Jesus Hernandez appeals from a judgment of the United States District Court for the Eastern District of New York entered March 10, 1978, after a jury trial before Thomas C. Platt, Judge, convicting him of importing cocaine in violation of 21 U.S.C. § 952(a) and § 960(a)(1) (count one), and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (count two). Appellant was sentenced concurrently on each count to five years imprisonment "plus a special parole term of 25 years, unsupervised, on condition that (he) leave the country upon his release from prison and not return during such special parole term." Minutes of Sentencing at 12.

Basing his claim on an allegedly erroneous evidentiary ruling and on an isolated statement in the charge, appellant seeks a reversal of the judgment of conviction. Alternatively, asserting the condition of parole to be improper, he asks that the case be remanded for resentencing. We disagree with his attack on the conviction, but agree that the case should be remanded for resentencing.

I. FACTS

An abridged version of the facts will suffice for a consideration of the points raised by appellant.

Appellant Hernandez worked as a steward aboard flights for Colombia's national airline, Avianca. On December 16, 1977, Avianca granted appellant's request for an assignment aboard a flight to New York, and advised him to prepare for departure from Bogota the next day. For this trip appellant purchased a white suitcase costing approximately $40 (1350 pesos). He filled it with personal belongings, and on the morning of the flight he deposited the locked suitcase on the special luggage cart for Avianca crew members bound to New York. Upon arrival in New York, appellant retrieved the suitcase from the baggage carrousel and proceeded through Customs. During the customs routine check, a ripple in the lining aroused suspicion. The customs inspector inserted a probe into the lining, and when he extracted it, found a white substance on the tip. A field test confirmed the nature of the substance: cocaine.

Customs inspectors and appellant proceeded to a special search room where the examination continued. While awaiting the arrival of a special agent from the Drug Enforcement Administration, one of the inspectors managed to dislodge from the lining of the suitcase two clear plastic envelopes full of cocaine. Subsequent analysis estimated its value at $10,000 in Colombia and $130,000 in the United States.

When the special agent arrived, he placed appellant under arrest and informed him of his constitutional rights. Appellant waived his right to remain silent. During the ensuing interrogation appellant confessed that his recent divorce had brought upon him "financial problems and . . . a lot of debts." Record, January 16: 82-83.

The question of appellant's financial problems came up again at trial. Evidence revealed that (1) appellant's employment with Avianca Airlines had lasted for 8 1/2 years, (2) appellant earned 10,000 pesos per month, or approximately $350, and (3) appellant owed 6,000 pesos ($210) in monthly alimony to his wife, and 38,000 pesos ($1,071) to others. On cross-examination the prosecutor, over defense objection, was permitted to ask "(I)sn't it a fact you're a desperate man, deeply in debt?" Record, January 17: 66. Appellant denied it, asserting that terms for the repayment of his debts had been arranged. The prosecution also referred to appellant's financial condition on summation.

The claim of reversible error in the charge is bottomed on the following part of Judge Platt's statement regarding credibility of appellant's testimony:

A defendant who wishes to testify is a competent witness. And the defendant's testimony is to be judged in the same way as that of any other witness. The law permits a defendant, at his own request, to testify in his own behalf.

Now, the testimony of an individual defendant is before you. You must determine how far it is credible. The deep personal interest which every defendant has in the result of his case should be considered in determining the credibility of his testimony.

You are instructed that interest creates a motive for false testimony; that the greater the interest, the stronger is the temptation. The interest of a defendant is that of a character possessed by no other witness and, therefore, seriously affects the credence that is to be given to his testimony.

Record, January 18: 73-74.

II. DISCUSSION

A. The Evidentiary Ruling

Appellant argues that evidence of his indebtedness was not only irrelevant to the question of guilt, but also improperly suggested to the jury that anyone with alimony and debts has a motive to commit crimes. Since debts such as appellant's are quite common in our modern society, so the argument goes, their admission improperly permitted an inference of guilt based on the "forbidden theme" that poor people, solely because of their poverty, are more likely to engage in crime than rich people. See, e. g., United States ex rel. Mertz v. New Jersey, 423 F.2d 537 (3rd Cir. 1970).

This argument must fail because there is nothing in the evidence from which it might be inferred that appellant was poor. He had more than a nominal sum of cash on him when arrested and had been steadily employed by Avianca for over eight years. In addition, he derived income from the sale in Bogota of American cigarettes, whiskey and clothing purchased at the free port of San Andreas.

To be admissible, the questioned evidence must be relevant, Fed.R.Evid. 401, and in the discretion of the court, the probative value must not be "substantially outweighed by the danger of unfair prejudice." Id. 403. The relevancy of an interest in paying off an indebtedness by engaging in a fast and highly lucrative money-making venture is obvious. It is equally clear that the court did not abuse its discretion in failing to find undue prejudice. At the time the question and answer objected to had been received, there was other evidence of appellant's financial situation before the jury. On the preceding day, the customs agent who questioned the defendant immediately upon his arrest "testified that appellant then admitted having financial problems and debts caused by a separation from his wife." Brief for Appellant at 4.

We have long recognized the admissibility of similar testimony to establish motive in money-related offenses. United States v. Polansky, 418 F.2d 444 (2d Cir. 1969) (bribery); United States v. Caci, 401 F.2d 664 (2d Cir. 1968), Cert. denied, 394 U.S. 917, 89 S.Ct. 1180, 22 L.Ed.2d 450 (1969), Rev'd on other grounds sub nom. Natarelli v. United States In Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969) (conspiracy to commit robbery affecting interstate commerce and conspiracy to transport stolen goods in interstate commerce); United States v. Houlihan, 332 F.2d 8 (2d Cir.), Cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964) (mail fraud, wire fraud and interstate transportation of stolen securities).

Appellant attempts to fit square pegs in round holes by his reliance on Davis v. United States, 409 F.2d 453 (D.C.Cir.1969) and United States v. Mullings, 364 F.2d 173 (2d Cir. 1966).

In Davis, the District of Columbia Circuit Court of Appeals, Leventhal, J., affirmed a conviction for assault and robbery where evidence was received that the defendant earned $50.00 per week, paid $15.00 for rent and contributed $10.00 per week for the support of his children. The only objection voiced was to the support payment, but it was not claimed to be prejudicial, and the court conjectured that it "may have resulted in sympathy rather than prejudice." 409 F.2d at 458. Appellant, although objecting, failed likewise to demonstrate prejudice.

In Mullings the court found that the prejudice resulting from evidence that the defendant was a narcotics user and earned less than $65.00 per week outweighed its probative value in supplying a motive for theft, particularly where there was no evidence of (1) the extent to which the defendant was a user, (2) the cost of such use, or (3) his inability to satisfy his needs because of lack of funds. Appellant's testimony that he came to New York "to get some merchandise, so I could sell, so I could pay off some of those debts," Record, January 17: 66, weighs on the probative side of the scale. The wide discretion accorded the trial judge in this balancing will be upheld "unless he acts arbitrarily or irrationally." United States v. Robinson, 560 F.2d 507, 514-15 (2d Cir. 1977) (en banc), Cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). The admission of the evidence was not error.

B. The Charge

Appellant contends that a portion of the charge, ¹ to which no objection was noted, constitutes plain error under Fed.R.Crim.P. 52(b) because the judge, after telling the jury that a defendant's interest in his own case affects the credibility of his testimony, failed to give a balancing instruction that such interest does not prevent him from testifying truthfully.

The charge must be considered in its entirety. When viewed in conjunction with the complete and detailed instructions on credibility generally and the elements to be considered in evaluating the testimony of a witness, ² the vice attributed to the...