U.S. v. Melchor Moreno

Citation536 F.2d 1042
Decision Date09 August 1976
Docket NumberNo. 75-2957,75-2957
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ivan MELCHOR MORENO and Rigoberto Melchor Moreno, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Wayne Windle, El Paso, Tex., for Roberto Moreno.

Dan L. Armstrong, El Paso, Tex., for Ivan Moreno.

John Clark, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Mike Milligan, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

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

Before WISDOM, * GODBOLD and LIVELY, ** Circuit Judges.

GODBOLD, Circuit Judge:

Rigoberto Melchor Moreno and his brother Ivan Melchor Moreno appeal from convictions on four narcotics charges. The principal issue they raise is a novel one. The prosecution informed the court that an individual subpoenaed by the defense, and called as a witness by the defense, would assert his Fifth Amendment privilege. In passing on the validity of the privilege, the trial judge held an in camera conference with the prospective witness, refusing to allow defense attorneys to attend. After the conference the judge announced in open court that he would sustain the privilege and bar all testimony by the witness. The defendants ask us to hold that this procedure deprived them of a fair trial. We decline to do so but nevertheless reverse because we find that the privilege was sustained too broadly.

I

The Melchor brothers are Mexican nationals. In 1974 Rigoberto was living as a rancher, farmer, and trucker in Mexico. On September 16, Guillermo Botello, Rigoberto's partner in various ventures, including the ownership of an aircraft, introduced him to an individual whom we will call Roe. 1 The three made arrangements to bring a large shipment of marijuana into the United States. Rigoberto was to obtain the marijuana from local growers, and Botello was to bring it across the border in the jointly-owned airplane and make delivery to Roe in the United States. Rigoberto performed his agreed part in the deal, but the transaction was aborted in October. The marijuana was seized near Ft. Worth, and Roe and others were arrested.

In January 1975, according to the testimony of government agents at the Melchors' trial, Roe began to work closely with the Drug Enforcement Administration (DEA) as an informer. DEA agents promised him that whatever assistance he gave the agency would be made known to the sentencing judge when the Ft. Worth episode came up for trial.

Roe contacted Rigoberto on March 25, 1975, to propose a heroin transaction. Rigoberto said that he would send his brother Ivan to discuss the matter. Ivan met with Roe several times on the following day. During these meetings Roe introduced Ivan to Joaquin Legaretta, an undercover agent for the DEA. A deal was struck, and on March 29 Rigoberto arranged to send to El Paso 2000 grams of heroin concealed under the dashboard of a station wagon driven by Ivan. 2 That day Rigoberto and Ivan met with Legaretta and John Comey, another DEA agent, at a hotel in El Paso. Legaretta displayed a large quantity of government cash, Rigoberto produced the heroin, and an arrest followed.

A grand jury returned a four-count indictment against the brothers, charging them with conspiring to import heroin (21 U.S.C. § 963), importing heroin (id. §§ 952(a), 960(a)(1) ), conspiring to possess heroin with intent to distribute (id. § 846), and possessing heroin with intent to distribute (id. § 841(a)(1) ).

At trial the Melchors raised an entrapment defense and sought to call Roe as their first witness. The defendants were acquainted with Roe, of course, having had dealings with him for several months. At the time of trial, according to undisputed evidence, they had his telephone number and the numbers of persons who knew him. Although Roe had responded to the defense's subpoena and was available for testimony, the government informed the court that Roe would assert his self-incrimination privilege and should not be called to the stand. The District Judge ruled that he would conduct an in camera hearing to determine whether or not Roe's Fifth Amendment claims were valid. The defense attorneys asked permission to attend this hearing to participate in the court's determination, but the request was denied. The District Judge conducted a lengthy interview with Roe. A transcript thereof was made and preserved under seal for review by this court. After the interview the District Judge announced in open court his decision that Roe could not testify without incriminating himself and thus would not have to take the stand.

In Roe's absence, the principal defense witnesses were the brothers themselves. With the support of character witnesses, they attempted to portray themselves as basically honest men who had obeyed the law all their lives, with the above described exceptions. Rigoberto testified that after the marijuana deal had fallen through he had felt depressed and ashamed and had resolved to avoid any further involvement with the drug traffic. He testified that he had put aside his reluctance and participated in the heroin transaction only because of Roe's persistent requests and pleas of hardship.

Ivan's story was that he had had little understanding of what was happening and that he had participated in the activities noted above solely because his brother had asked him to.

The jury found Rigoberto and Ivan guilty on all counts. The judge imposed partly consecutive and partly concurrent sentences totalling 30 years' imprisonment for each defendant.

II

If the District Court's refusal to allow the defendants to call a material witness to the stand lacked some affirmative justification, it was a violation of the defendants' constitutional rights. In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967), the Supreme Court spelled out the significance of the Sixth Amendment right of the accused "to have compulsory process for obtaining witnesses in his favor." The Court noted: "The right to offer testimony of witnesses, and compel their attendance, if necessary, is in plain terms the right to present a defense." 3 The Sixth Amendment's policy is reinforced by the broad requirement of fundamental fairness that the due process clause of the Fourteenth Amendment imposes. In Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1949, 35 L.Ed.2d 297, 312 (1973), the Supreme Court said, in the course of a discussion of due process: "Few rights are more fundamental than that of an accused to present witnesses in his own defense."

The District Court's Fifth Amendment decision, if correct, would provide the requisite justification for excluding Roe's testimony. U. S. v. Gloria, 494 F.2d 477 (CA5), cert. denied, 419 U.S. 995, 95 S.Ct. 306, 42 L.Ed.2d 267 (1974); U. S. v. Lacouture, 495 F.2d 1237 (CA5), cert. denied,419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974). 4 But the defendants are in a difficult position. They cannot challenge the substance of the Fifth Amendment ruling because they did not hear what the judge heard. Thus they take the position that they should have been allowed to participate in the Fifth Amendment hearing, cross-examining Roe if necessary and urging the judge to overrule the privilege claim to the extent, if any, that it was frivolous.

The District Judge's method of deciding the privilege claim must be evaluated within the context of the broad approach outlined by the Supreme Court in Hoffman v. U. S., 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Hoffman attempts to resolve a dilemma that arises in many privilege situations. The courts cannot accept Fifth Amendment claims at face value, because that would allow witnesses to assert the privilege where the risk of self-incrimination was remote or even nonexistent, thus obstructing the functions of the courts. The applicability of the privilege is ultimately a matter for the court to decide. On the other hand, "if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee." Hoffman, 341 U.S. at 486, 71 S.Ct. at 818, 95 L.Ed. at 1124. Thus a practice has developed whereby, outside the presence of the jury, the witness will allude in very general, circumstantial terms to the reasons why he feels he might be incriminated by answering a given question. The judge examines him only far enough to determine whether there is reasonable ground to apprehend danger to the witness from his being compelled to answer. If the danger might exist, the court must uphold the privilege without requiring the witness to demonstrate that a response would incriminate him, the latter inquiry being barred by the privilege itself. As the Court in Hoffman phrased it:

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence."

341 U.S. at 486-87, 71 S.Ct. at 818, 95 L.Ed. at 1124. This general approach to adjudication of the self-incrimination privilege has been followed by this circuit in numerous opinions. 5

It is clear that the District Judge here was correct in passing upon Roe's privilege claim in the absence of the jury, U. S. v. Gomez-Rojas, 507 F.2d 1213, 1220 (CA5, 1975), but it is by no means clear that he was correct in excluding everyone else as well. There is very little authority on this question. In a few reported cases an individual has been directed to make the showing contemplated by Hoffman through an in...

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  • Farber, Matter of
    • United States
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    ...the privilege, and at times it permits suppression of competent evidence, nothing better is available." Also United States v. Melchor Moreno, 536 F.2d 1042 (5 Cir. 1976); In re U.S. Hoffman Can Corp., 373 F.2d 622 (3 Cir. 1967). It must be stressed nevertheless that the In camera inspection......
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