U.S. v. Mayans
| Decision Date | 09 February 1994 |
| Docket Number | No. 92-50530,92-50530 |
| Citation | 17 F.3d 1174 |
| Parties | 39 Fed. R. Evid. Serv. 51 UNITED STATES of America, Plaintiff-Appellee, v. Pablo MAYANS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael J. Lightfoot, Talcott, Lightfoot, Vandevelde, Woehrle & Sadowsky, Los Angeles, CA, for defendant-appellant.
Stephen Madison, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California, Manuel L. Real, Chief Judge, Presiding.
Before: FLETCHER and D.W. NELSON, Circuit Judges, and WILL, * District Judge.
On January 14, 1992, Los Angeles police officers arrested ten persons subsequently charged in an eight-count drug trafficking indictment. The five cocaine buyers and the sellers' "mule," Andres Ortiz, were all arrested in the act of consummating a drug deal; three others belonging to the cocaine selling group were arrested at or in the course of leaving an apartment, located on Otis Avenue, which Ortiz had visited just before the deal. Appellant Pablo Mayans was arrested as he drove up and down the street in front of the Otis apartment several hours after the first group of defendants had been arrested. Mayans' family owned the apartment.
Most of the defendants pled guilty; Mayans, along with two others, went to trial. The government's case against Mayans was largely circumstantial. The government showed that both the Otis apartment and another residence owned by Mayans' family had been used as stash houses by the cocaine sellers; that on January 9 and January 14, 1992, Mayans was observed in heated conversation with Ortiz at Benji's Auto Sales, where Ortiz appeared to work; that on the afternoon of January 14, Mayans went to the Otis apartment while Ortiz was there; and that Mayans turned up at the apartment again after the deal had gone awry. The government also introduced evidence (discussed more fully below) of prior drug deals between Mayans and three of the buyers.
The defense disputed or attempted to provide exculpatory explanations for much of the government's evidence. The defense showed that Mayans often went to Benji's to collect rent from a delinquent tenant; the defense also disputed that Mayans had gone to the Otis apartment on the afternoon of January 14, and submitted alibi evidence on this point.
The jury convicted Mayans on one count of conspiracy to distribute and possess with intent to distribute cocaine, and two counts of possession of cocaine. Mayans' appeal is based on five purported errors occurring in the course of trial. 1
Mayans used an interpreter until the very end of trial; the error he complains of occurred when he took the stand and the trial judge withdrew the interpreter. Initially testifying through the interpreter, appellant stated that he was born in Cuba, had been in the United States since 1971, and spoke English.
The district judge at that point broke in with "Let's try it in English," observing that appellant had been in this country longer than he had been in Cuba, and that testimony takes "twice as long" with an interpreter. Tr. at 1190. Appellant's counsel objected, stating that appellant could not express himself in English. The judge responded by asking counsel repeatedly to "try it." Tr. at 1191. Counsel withdrew appellant as a witness, and asked for a sidebar. The court denied that request
Since appellant had been the last witness for the defense, the government then put on its rebuttal case. After rebuttal, defense counsel moved to reopen and to put Mayans on the stand, presumably without an interpreter this time. The court refused to reopen after rebuttal, and shortly thereafter explained again that appellant had been in the United States longer than in Cuba, and that appellant's brother, who had testified without an interpreter over defense objections, had had no trouble handling himself. Subsequently, the defense moved for a mistrial on the ground that defendant had been denied an interpreter. The court denied the motion.
The issue was raised one final time by the prosecutor, who advised the court that in order to avoid creating grounds for appeal, the government would not object to reopening the case and allowing Mayans to testify. The court refused to do so, but did ask Mayans (through an interpreter) whether he had agreed with his attorney's initial decision to withdraw him as a witness. Mayans stated that he had. Apart from the initial colloquy which led to the withdrawal of the interpreter, Mayans did not testify.
Shortly before trial began, the government announced that it would call as witnesses three of the buyer co-defendants who had entered into plea bargains with the government--Vernon Neal Smith, Sidney Harmon, and Akil McElhannon. The government told the court that the co-defendants would testify about prior drug deals with appellant. Appellant objected to this evidence, and argued that at the very least the government should be required to show that the co-defendants' testimony was admissible under Fed.R.Evid. 404(b) and 403. The government responded that the evidence was admissible to prove "other wrongs" under Rule 404(b) because it was probative of appellant's knowledge and intent, which the government expected to be in dispute. The government also said that the evidence was admissible to prove additional overt acts in the conspiracy charged. Appellant then asked the government for a more precise statement of what had allegedly occurred in the prior transactions, and the prosecutor agreed to give defense counsel all the information he had.
Whatever information changed hands, none was presented to the district court. The court, however, was satisfied that it had sufficient facts from which to determine admissibility, explaining to defense counsel that it did not need a "bill of particulars ... I'm telling you there was a meeting with your client in which he sold to them narcotics, cocaine ... What else do I need to know as to the relevancy of that?" Tr. at 15-16. The court then ruled that the disputed evidence could come in under either Rule 404(b) or the overt act theory.
At trial, Smith and Harmon both testified that a year and a half before the charged acts occurred, Mayans had appeared at an apartment in Inglewood where they were buying drugs from a dealer named Trino, and that Mayans had supplied multiple kilograms of cocaine--which they bought as well. McElhannon testified that two months before the charged acts, he had complained about defective cocaine he had bought from co-defendant Cristino Jacobo, and that Mayans had appeared, with Jacobo, to supply him with better quality drugs.
Smith also testified about conversations he had had with Mayans when the two of them were in jail following their arrest in this case. The remarks Smith attributed to Mayans strongly suggested that Mayans had been involved in the conspiracy.
When defense counsel cross-examined the same three co-defendants, he sought to make
a detailed inquiry into their understanding of the plea agreements they had made with the government. Counsel was cut short by the judge before he had completed this line of questioning to his satisfaction.
In his closing argument, the prosecutor, in referring to the January 9 and January 14 meetings between appellant and Ortiz at Benji's Auto Sales, described the nature of the interaction witnessed by police officers, and then twice stated that "there is no evidence to contradict that." Tr. at 1440-41. Appellant did not object to these comments.
As noted, appellant's case consisted in part of alibi evidence introduced to refute the government's assertion that he had been at the Otis apartment at 4:00 p.m. on January 14. The defense sought to show that appellant had been in his office all afternoon, and the prosecution essentially conceded in closing that he had been there at all times save from 3:50 to 4:27 p.m. At trial, appellant attempted to introduce the testimony of his brother Eugene concerning travel time from appellant's office to appellant's home--the latter of which was apparently very close to the Otis apartment.
The district court sustained the government's objection to this line of questioning, but later permitted the government to introduce testimony on the subject of travel time between appellant's office and the Otis location. The government made use of this travel time testimony in its closing, stating that since the trip took only 10 minutes, appellant would have had time to get to Otis Avenue and back to the office within the allotted time.
Over defense objections, the government was permitted to question appellant's wife about the Mayans family's real estate holdings (six apartment buildings, a restaurant, and a warehouse), and to elicit the fact that she and her mother-in-law each drove a Mercedes. When defense counsel attempted to question appellant's brother about the source of the family's wealth, the court sustained the government's relevancy objection. The government referred to the family's wealth in closing.
Under 28 U.S.C. Sec. 1827(d)(1), a judge must order the use of an interpreter if the judge
determines on [his or her] own motion or on the motion of a party that such party (including a defendant in a criminal case), or a witness who may present testimony ... speaks only or primarily a language other than the English language ... so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness' comprehension of questions and the presentation of such testimony.
Appellant argues that the trial court failed to observe...
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