U.S. v. Negrete-Gonzales

• Citation: 966 F.2d 1277
• Decision Date: 02 June 1992
• Docket Number: 90-30318,D,NEGRETE-GONZALE,MENDOZA-BARAJA,Nos. 90-30306,s. 90-30306
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Jorgeefendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Rogelioefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1277

966 F.2d 1277

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Jorge NEGRETE-GONZALES, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Rogelio MENDOZA-BARAJAS, Defendant-Appellant.

Nos. 90-30306, 90-30318.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 9, 1992.

Decided June 2, 1992.

John A. Maxwell, Jr., Meyer, Fluegge & Tenney, for defendant-appellant Negrete-Gonzales.

Victor H. Lara, Kurtz, Hurley & Lara, Yakima, Wash., for defendant-appellant Mendoza-Barajas.

Gregory M. Shogren, Asst. U.S. Atty., Yakima, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before: BROWNING, WRIGHT and FERNANDEZ, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The two defendants here may or may not have conspired to sell cocaine, but a trial rife with error denied them their fundamental right to make the government prove its case. The district court arbitrarily struck the testimony of the key defense witness, permitted the government's ill-advised inquiry into the defendants' post-arrest silence, and misinstructed the jury. We reverse and remand for a new trial, with the expectation that these errors will be corrected.

I

The two defendants, Rogelio Mendoza-Barajas (Mendoza) and Jorge Negrete-Gonzalez (Negrete), were arrested together with Maria Medina-Barajas (Medina) following an undercover drug investigation. Medina pleaded guilty, and a jury convicted Mendoza and Negrete following a joint trial.

The investigation started when Lopez, a confidential informant, told the DEA that he could arrange to buy cocaine from Medina. With the DEA's encouragement, he arranged a multi-kilogram transaction.

Medina met Lopez and undercover DEA agent Weeks at a grocery store parking lot. Medina arrived, driving Negrete's car, accompanied by Mendoza. At Medina's suggestion, Lopez and Weeks followed her to her home to complete the deal.

There, Mendoza, Medina and Lopez went inside while Weeks waited in the car. Once inside, Medina and Lopez entered a bedroom to inspect the cocaine. Mendoza stayed in the family room, watching television. Negrete was also present at the house.

After confirming that Medina had several kilograms of cocaine, Lopez returned to the car to tell Weeks. At some point Negrete approached Weeks as he waited in the car and suggested that Weeks come inside to complete the transaction. Weeks refused, telling Negrete that first he and Lopez had to call a third party to arrange for the money.

Negrete reentered the house and Weeks gave the arrest signal. Before the other agents arrived, Negrete reappeared in the yard. After agents identified themselves, Negrete pulled a pistol from his waistband and threw it into the bushes. There is conflicting testimony about whether he pointed the pistol at the police before he was arrested.

Agents arrested Medina after finding her hiding in the garage. They arrested Mendoza when they found him in the backyard standing near the place where the three kilograms of cocaine had been hidden. A Spanish-speaking agent took the defendants inside the house and advised them of their Miranda rights.

After obtaining a telephonic search warrant, agents searched the house and found additional cocaine, scales, another pistol and some ammunition.

A jury convicted the two defendants of conspiring to distribute cocaine, possession of cocaine with intent to distribute, and use of a firearm during a narcotics felony. The court sentenced Negrete to 168 months and Mendoza to 138 months. Both appeal their convictions. Mendoza also appeals his sentence.

II

A. Stricken defense testimony.

Absent an abuse of discretion, this court will not interfere with a district court's decision to strike all or part of a witness's testimony. United States v. Panza, 612 F.2d 432, 438 (9th Cir.1979), cert. denied, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980).

Medina testified on behalf of both defendants. She had already pleaded guilty for her part in the attempted sale, but had not yet been sentenced. On direct examination, she explained that she alone was responsible for the attempted sale. She insisted that neither defendant was involved. Her testimony was crucial to the defense: if the jury believed her, it would have had to acquit Negrete and Mendoza on all three counts.

On cross-examination, the government asked her to identify her source of cocaine. She refused. She said that to do so would jeopardize the lives of her children. She would say only that neither Negrete nor Mendoza provided her the drugs. Based on her refusal to name her source, the court granted the government's motion to strike her entire testimony.

The leading case in this area is remarkably similar. In United States v. Lord, 711 F.2d 887 (9th Cir.1983), a jury convicted the defendant of distributing cocaine, conspiring to distribute cocaine and violating section 924. Id. at 888. Lord sold drugs to Spaulding, an undercover agent. Lord defended on a theory of entrapment. Id. at 889. At trial, Lord's witness Ogden bolstered Lord's entrapment defense by testifying that Spaulding often badgered people for drugs, and that Ogden had introduced several suppliers to Spaulding. Id.

On cross-examination, the government asked Ogden to reveal the names of the suppliers she had introduced to Spaulding. She refused, invoking her Fifth Amendment privilege. Id. The court ordered her testimony stricken.

On appeal, we noted that striking a witness's entire testimony is an extreme sanction, not to be lightly imposed. Id. at 892. In finding error in the court's striking of Ogden's testimony, we set forth the now well-established rule that a court

may apply this sanction only when the question asked pertains to matters directly affecting the witness's testimony; the judge may not use the sanction when the privileged answer pertains to a collateral matter.

Id.; see also United States v. Esparsen, 930 F.2d 1461, 1469 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992). We found the error harmless, though, because the testimony was merely cumulative of that of several other witnesses. 711 F.2d at 892.

Here, as in Lord, the identity of the unknown suppliers is only peripherally related to the witness's direct testimony. At trial, the government established that Medina had planned to sell cocaine to Lopez and Weeks. Negrete and Mendoza were tried for their alleged help in Medina's attempts to complete that sale. Neither was charged with supplying Medina. The identity of her source was collateral to the issues at trial and to her testimony on direct examination. Any possible relevance to the issues at trial dissipated when she made clear that her supplier was someone other than Mendoza or Negrete.

Medina, unlike the witness in Lord, asserted fear of reprisal rather than her Fifth Amendment privilege as justification for her refusal to answer. Despite this difference, however, we find the Lord analysis applicable here. The key question is whether the defendant's right to present witnesses can be protected without frustrating the government's interest in effective cross-examination. A witness's reason for refusing to answer is crucial in determining whether to hold the witness in contempt, but it plays no role in considering whether the cross-examination was frustrated. The right to present witnesses is obviously not unlimited, but the rule distinguishing between collateral and direct issues properly limits it. Cf. Panza, 612 F.2d at 436-39 (suggesting without deciding that a nonprivileged refusal to answer does not justify striking a witness's entire testimony if the questioning pertained only to collateral matters).

We cannot conclude here, however, as we did in Lord, that the error was harmless. See Lord, 711 F.2d at 892. Medina's testimony was not merely cumulative of that of other witnesses. She was the defendants' key witness, and no other witness could duplicate her testimony. The jury, of course, could have disbelieved her, but it was not given the opportunity to consider her testimony under the court's ruling.

B. Post-Miranda silence.

The government erred by making an issue of Negrete's post-arrest silence, and the court erred by allowing it over defense counsels' strong objections.

The Supreme Court has made clear that a defendant may exercise his constitutional right to remain silent and not be penalized at trial for doing so. The government may not use a defendant's post-Miranda warning silence to impeach the defendant at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). That is exactly what happened here.

On direct examination, Negrete provided an exculpatory story explaining why he had the pistol when he was arrested. He said he was returning it to its true owner, someone named "Paco". Also, both Negrete and Mendoza testified that they were not involved in that attempted sale, that Medina was the only one involved. On cross examination, the government repeatedly asked Negrete to explain why he failed to tell his story to the arresting agents. The government emphasized the point by asking the agents if either defendant offered an exculpatory story on the night they were arrested.

Under Fletcher, the questions would have been permissible if they had focused only on pre-Miranda warning silence. But here the questions were very broad, encompassing both pre- and post-Miranda silence (emphasis added):

Q [to an agent]. At any time that night, when you were conversing with the defendants, ... did anyone say that the pistol carried by Negrete was only carried as he was returning it to a friend?

Q [to an agent]. Did anybody say that the defendants ... were not involved in that drug transaction that night?

Q [to an agent]. At any time did [Negrete] say that he was only returning that firearm?...