U.S. v. Lopez

• Decision Date: 11 May 1978
• Docket Number: No. 76-1831,76-1831
• Citation: 576 F.2d 840
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paldo LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 840

576 F.2d 840

UNITED STATES of America, Plaintiff-Appellee, v. Paldo LOPEZ, Defendant-Appellant.

No. 76-1831.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Dec. 13, 1977.

Decided May 11, 1978.

Vernon Lewis, Asst. U. S. Atty., Kansas City, Kan. (E. Edward Johnson, U. S. Atty., and Richard L. Hathaway, Asst. U. S. Atty., Kansas City, Kan., on brief), for plaintiff-appellee.

Ernest C. Ballweg, Prairie Village, Kan., for defendant-appellant.

Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Defendant Lopez appeals from a jury conviction of conspiracy to dispense eight ounces of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846 (1970). He claims that the court erred in denying his motion for judgment of acquittal at the close of the government's case, that the jury verdict was contrary to the weight of the evidence, and that a single remark of a government witness was so prejudicial as to deny him a fair trial.

FACTS

Agent Marin, the government's principal witness, testified he negotiated with Villarreal, defendant's alleged coconspirator, for the purchase of eight ounces of heroin, taking delivery of three ounces sometime before August 11, 1975, with the understanding that the balance would be delivered at a later date. Pursuing this plan he met Villarreal in a lounge on August 11 at which time Agent Marin complained about the quality and price of the drugs and threatened to back out of the deal. Villarreal then walked over to the bar and talked briefly with defendant and Vargas, another coconspirator. He returned to agent Marin's table, bringing Vargas with him. After a brief discussion Agent Marin told Vargas to meet him in a nearby pool hall.

When Vargas arrived for the pool hall meeting he was accompanied by defendant. A discussion of the additional five ounces of heroin ensued. Agent Marin's precise testimony about that discussion is critical to this case. He testified:

I explained to Mr. Vargas and Mr. Lopez that the heroin was bad quality and too high priced. Mr. Lopez then asked me what kind of price did I want to pay for it, and I told him that five thousand or less would probably be a better price than what they were asking for it. Mr. Lopez then told me that he was in the cocaine business. He said that he was only there dealing that particular heroin because Vargas was a friend of his and he was trying to help him. Mr. Lopez told me he was capable of deliveries up to seven kilos of cocaine to me if I wanted it; and if I went ahead and purchased this heroin, that this would be a sign of good faith on my part, and we would then make arrangements to deliver large quantities of cocaine and good quality. I then told Mr. Lopez I was not going to buy it at that price, and that was final. Mr. Lopez then told me to take the "I've got ten ounces."

He said, "you can pick out whatever five you want out of the ten, and I'll give it to you for $4,800." I then told Mr. Lopez, "Fine. I'll give you four thousand eight hundred for it tomorrow, not today, because I don't have the money on me today." He then agreed, and Mr. Vargas and Mr. Lopez then walked out of the pool hall.

Record, vol. 1, at 50-51. Agent Marin testified that Vargas delivered the five ounces as agreed and at defendant's price. Agent Marin's testimony on cross-examination did not waiver and he reaffirmed that it was defendant who set the price.

Testifying for the government after plea bargaining, Vargas confirmed the pool hall meeting and stated that he thought "it was (defendant who) set the price of (the heroin)." On cross-examination Vargas did not recant but did admit that he "controlled" whether the price set by defendant would ultimately be acceptable. While he equivocated about the existence of an "agreement" between defendant and himself, he neither offered an explanation for defendant's participation nor clearly indicated that defendant was a mere interloper. He also testified about a number of other matters which circumstantially connected defendant to the sale. He stated that Jack Rabbit was the source of the heroin sold to Agent Marin, and that defendant and Jack Rabbit, who both lived with Vargas during the summer of 1975, came from Texas with a quantity of "gummy-looking" heroin which "looked like" the government's exhibit.

An informant named Garcia also testified for the government. Although his memory was somewhat faulty and the examination was hampered by the need to use an interpreter, Garcia substantiated much of Agent Marin's testimony. When asked whether he remembered seeing defendant in the bar on August 11, Garcia stated through the interpreter: "Yes. He was involved in everything." Record, vol. 2, at 160. Defendant's counsel promptly objected. The trial judge immediately admonished the jury to disregard the statement because Garcia had merely stated his opinion, which was conjectural and was not proper evidence.

MOTION FOR JUDGMENT OF ACQUITTAL

Defendant moved for judgment of acquittal at the close of the government's case pursuant to Rule 29 of the Federal Rules of Criminal Procedure and the motion was denied. However, since no Rule 29 motion was made at the close of all the evidence, we must initially determine whether the denial of defendant's motion is properly before us. We find that it is.

As a general rule, an appellate court will not review the record to determine whether the evidence is sufficient to sustain a guilty verdict unless the defendant moved for a judgment of acquittal. E. g., United States v. Parrott, 434 F.2d 294, 295 (10th Cir. 1970), cert. denied, 401 U.S. 979, 91 S.Ct. 1211, 28 L.Ed.2d 330 (1971); Maxfield v. United States, 360 F.2d 97, 102 (10th Cir.), cert. denied, 385 U.S. 830, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). Under that rule, a defendant who moved for a judgment of acquittal at the close of the government's case must move again for a judgment of acquittal at the close of the entire case if he thereafter introduces evidence in his defense because, by presenting such evidence, the defendant is deemed to have withdrawn his motion and thereby to have waived any objection to its denial. E. g., Lucas v. United States, 355 F.2d 245, 248 (10th Cir.), cert. denied, 384 U.S. 977, 86 S.Ct. 1873, 16 L.Ed.2d 687 (1966).

The waiver rule thus places the defendant on the horns of a dilemma if he believes his motion for acquittal made at the close of the government's case was erroneously denied. He can rest his case, thereby preserving his appeal, and face the risk of a conviction which may not be reversed, or he can present evidence of his innocence, thereby waiving his appeal from the original ruling, and assume the risk that this evidence may provide the missing elements in the prosecution's case. See, e. g., United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975); Jaben v. United States, 349 F.2d 913, 916 The waiver rule has been subject to growing criticism and attack. Some courts have ameliorated its harsh effects by carving out exceptions from or limiting the application of the rule. E. g., United States v. Perez, 526 F.2d 859, 864 n. 10 (5th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976); United States v. Polizzi, 500 F.2d 856, 903 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Cephus v. United States, 117 U.S.App.D.C. 15, 17-20, 324 F.2d 893, 895-98 (1963); United States v. Viale, 312 F.2d 595, 601 (2d Cir.), cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963). Moreover, several recent cases have impliedly or specifically rejected the waiver rule, making its continued validity at least questionable in three circuits. United States v. Watkins, 171 U.S.App.D.C. 158, 161, 519 F.2d 294, 297 (1975); United States v. Burton, 472 F.2d 757, 763 (8th Cir. 1973); Powell v. United States, 135 U.S.App.D.C. 254, 256-57, 418 F.2d 470, 472-73 (1969); United States v. Rizzo, 416 F.2d 734, 736 (7th Cir. 1969); see 8A Moore's Federal Practice § 29.05 (1977); C. Wright, Federal Practice and Procedure § 463, at 247 (1969); Comment, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151 (1961). Where the waiver rule is abolished, denials of acquittal motions may be reviewed by appellate courts as of the time each motion was made whether at the close of the government's evidence or at the end of the entire case. United States v. Rizzo, 416 F.2d at 736.

(8th Cir. 1965); United States ex rel. Lukas v. Delaware, 371 F.Supp. 1317, 1319 (D.Del.1974).

Notwithstanding these attacks, we need not resolve the severe difficulties of the waiver rule in this case. The rule has uniformly been held not to apply to cases in which the defendant did not present a defense after moving for an acquittal at the close of the prosecution's case. E. g., United States v. Perez, 526 F.2d at 864; United States v. Kubeck, 487 F.2d 1256, 1258 (6th Cir. 1973). While Villarreal presented testimony in his own defense, defendant rested without presenting a case. Although Villarreal's testimony was favorable as to defendant, it cannot be deemed to have waived defendant's prior motion. United States v. Arias-Diaz, 497 F.2d 165, 168 (5th Cir. 1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1446, 43 L.Ed.2d 761 (1975); Cephus v. United States, 117 U.S.App.D.C. at 19, 324 F.2d at 897. Since we can review the sufficiency of the evidence only as of the time the Rule 29 motion was made, we consider only the government's testimony in chief and exclude the affirmative evidence presented by codefendant Villarreal. United States v. Henderson, 524 F.2d 489, 490 n. 1 (5th Cir. 1975); United States v. Bethea, 143 U.S.App.D.C. 68, 70 n. 4, 442 F.2d 790, 792 n. 4 (1971).

In reviewing the denial of a motion for a judgment of acquittal, we must view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government to determine whether there is sufficient...