U.S. v. Jimenez

• Decision Date: 12 September 2006
• Docket Number: No. 04-51225.,04-51225.
• Citation: 464 F.3d 555
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michelle JIMENEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.3d 555

UNITED STATES of America, Plaintiff-Appellee, v. Michelle JIMENEZ, Defendant-Appellant.

No. 04-51225.

United States Court of Appeals, Fifth Circuit.

September 12, 2006.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.

Edward L. Bravenec, McKnight & Bravenec, San Antonio, TX, for Defendant-Appellant.

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

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Defendant-Appellant Michelle Jimenez ("Jimenez") appeals her convictions for conspiracy to possess with intent to distribute 500 grams or more, but less than five kilograms, of cocaine and aiding and abetting possession with intent to distribute that amount. Jimenez argues that the district court violated her Sixth Amendment right to confront and cross-examine witnesses by not allowing her to ask Government witness San Antonio Police Department Narcotics Unit Officer Valentine Lopez ("Lopez") where specifically he was located when he allegedly observed Jimenez selling drugs while on the front porch of her home. We find that Jimenez's rights under the Confrontation Clause were, in fact, violated by the district court's limitations on cross-examination; furthermore, we find that the Sixth Amendment error was not harmless. Accordingly, we vacate Jimenez's convictions and remand for further proceedings.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

Jimenez was charged, along with her boyfriend, Juan M. Rodriguez ("Rodriguez"), in a two-count indictment with conspiracy to possess with intent to distribute 500 grams or more, but less than five kilograms, of cocaine and with aiding and abetting possession with intent to distribute the aforementioned amount of cocaine. Over Jimenez's objection at trial, the district court prohibited Jimenez from asking Lopez where specifically he was located when he observed what appeared to be Jimenez selling drugs. Based on his observations, Lopez obtained a search warrant for Jimenez's house. After the uniformed officers knocked on her door and identified themselves as police, they heard someone running toward the back of the house. When the officers forced entry into the house, they saw Jimenez running toward the kitchen at the back of the house and Rodriguez lying on a couch in the front room.

After she was Mirandized, Jimenez directed the officers to cocaine wrapped in aluminum foil in and under the stove in the kitchen, but the officers discovered cocaine in other locations on their own.² The officers found a total of 4,450.65 grams, or 9.79 pounds, of cocaine throughout the house — in the kitchen, in the bathroom, and in the living room. The officers testified that the amount of cocaine found at the house was consistent with distribution. Furthermore, the officers' search revealed a large trash can in the kitchen containing items used to package and process cocaine, grinders, scales, packaging material, and tubs to mix the cocaine. No crack cocaine or items for its use were found in the house. The officers also found both an unloaded semi-automatic firearm in a purse and ammunition in the bathroom. Jimenez testified that she did not know there was a gun in the house. According to Lopez, Jimenez told him that there was a gun and cocaine in the bathroom and asked him not to tell Rodriguez that she had divulged the location of the cocaine.

At trial, Jimenez testified that she was a crack cocaine user but that Rodriguez, who was staying with her at the house, was a drug dealer and that all of the drugs stashed throughout the house belonged to him.³ She testified that she would leave when Rodriguez was cutting and packaging the cocaine. She denied having any role in producing or selling the drugs. She did admit that she had prior guilty-plea convictions for possession of cocaine and heroin, for which she spent five months in jail. She also testified that when she heard the officers at the door, she started running toward the back of the house, not in an effort to evade arrest, but to safeguard her two children who were in a bedroom near the back of the house. After hearing the testimony, the jury found Jimenez guilty on both counts. The district court sentenced Jimenez to 168 months of imprisonment and five years of supervised release, to be served concurrently. Jimenez filed a timely notice of appeal.

II. DISCUSSION

CONFRONTATION CLAUSE CLAIM

1. Overview

Jimenez asserts the district court violated her Sixth Amendment right to confront and cross-examine witnesses by not allowing her to ask Lopez where specifically he was located when, as he testified, he observed her selling drugs outside of her home. Jimenez argues, and the record reveals, that Lopez was the only witness to testify that he saw Jimenez distributing drugs. She explains that because her cross-examination was limited by the district court, she could not test whether Lopez was in a position to see clearly the alleged drug transactions, whether there were any obstructions that impeded his view, or whether he fabricated his testimony. She contends that to assume, as the district court did, that Lopez would testify truthfully that he had an unobstructed view is to ignore the purpose of the Confrontation Clause. Finally, Jimenez argues that the denial of her right to test Lopez's credibility was not harmless error.

The Government argues that the district court did not abuse its discretion in limiting Jimenez's cross-examination of Lopez. It asserts that the question whether there were obstructions to Lopez's view was fully developed at trial. According to the Government, the district court noted correctly that the relevant question is not where Lopez was located, but whether there were obstructions in his line of sight. In the alternative, the Government argues that, given the strength of the evidence, any Sixth Amendment violation was harmless; even if Jimenez had established through cross-examination that Lopez's exact location was obstructed, there was overwhelming evidence that she conspired to possess cocaine with intent to distribute and aided and abetted the possession of cocaine with intent to distribute, as alleged in the indictment.

2. Standard of Review

"Alleged violations of the Confrontation Clause [of the Sixth Amendment] are reviewed de novo, but are subject to a harmless error analysis." United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004). If there is no Sixth Amendment violation, this court addresses whether the district court abused its discretion by limiting cross-examination. United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993).

3. Was There a Sixth Amendment Violation?

The Confrontation Clause guarantees a criminal defendant the right to cross-examine the witnesses against him. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Indeed, it "is the principal means by which the believability of a witness and the truth of his testimony are tested." Id. at 316, 94 S.Ct. 1105. The right to cross-examination "is particularly important when the witness is critical to the prosecution's case." United States v. Mizell, 88 F.3d 288, 293 (5th Cir.1996). "[T]he cross-examiner is . . . permitted to delve into the witness' story to test the witness' perceptions and memory, [and] ... has traditionally been allowed to impeach, i.e., discredit, the witness." Davis, 415 U.S. at 316, 94 S.Ct. 1105. The right to cross examine, however, is not unlimited, but depends on the circumstances of the case. Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir.2005) (explaining that defendants are not guaranteed "cross-examination to whatever extent they desire"). Therefore, the only way we can accurately determine if Jimenez's Sixth Amendment right to confrontation was violated in this case is to turn to Lopez's trial testimony.

The record reflects that Lopez began his testimony on direct by explaining that he had received information from a long-time confidential informant regarding activities at 3602 Olive Street, Jimenez's residence. Lopez stated that as a result of these tips, he conducted surveillance and observed several vehicles drive up and park at the front and side of Jimenez's house. He explained that, through binoculars, he observed individuals from these vehicles knocking on the front door and Jimenez answering the door; Lopez testified that he saw these individuals talk with Jimenez and hand her money. Thereafter, Jimenez went into her house, returned a short time later, and gave the individuals "something small." The individuals then left Jimenez's residence. Lopez testified that he observed these events transpire with approximately six different people over a thirty to forty-five minute period.

On cross-examination, defense counsel asked Lopez where he was stationed when he was conducting surveillance of Jimenez's house. Lopez refused to answer whether he had parked on Olive Street in front of the house or on the side street, and responded evasively to several questions that he "was parked close to the house where they couldn't see me." When Jimenez's counsel asked specifically on what street Lopez had been parked, the Government objected to Lopez answering the question, arguing that "it is going to attack the procedure used by the [San Antonio Police Department]."

Jimenez's counsel argued that he was testing Lopez's ability to see the activities to which he testified. The court instructed defense counsel to "[a]sk [Lopez] if he saw it." Jimenez's counsel explained that the goal was to elicit Lopez's vantage point in order to determine if he had a clear view of Jimenez's front porch. The court allowed counsel to ask only logistical questions, for example, if certain objects obstructed Lopez's view. Counsel asked Lopez whether there was a tree on the right side of the house on Olive Street, and Lopez could not recall whether there was. Lopez agreed that the front of...