U.S. v. Palacios, 76-2172

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GODBOLD, SIMPSON and GEE; SIMPSON
• Citation: 556 F.2d 1359
• Parties: 2 Fed. R. Evid. Serv. 390 UNITED STATES of America, Plaintiff-Appellee, v. Regino PALACIOS, Defendant-Appellant.
• Docket Number: No. 76-2172,76-2172
• Decision Date: 08 August 1977

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556 F.2d 1359 2 Fed. R. Evid. Serv. 390 UNITED STATES of America, Plaintiff-Appellee,
v.
Regino PALACIOS, Defendant-Appellant. No. 76-2172. United States Court of Appeals,
Fifth Circuit. Aug. 8, 1977.

Page 1360

Oscar J. Pena, Laredo, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., George A. Kelt, Jr., Asst. U. S. Atty., Houston,

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Tex., Rene J. Gonzalez, Asst. U. S. Atty., Laredo, Tex., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GODBOLD, SIMPSON and GEE, Circuit Judges.

SIMPSON, Circuit Judge:

The indictment below was against the appellant Regino Palacios and a co-defendant, Cecilia Garcia. Palacios was charged with (1) conspiring with Garcia to possess marijuana with intent to distribute it, in violation of 21 U.S.Code, §§ 841(a)(1) and 846; and (2) aiding and abetting Cecilia Garcia in the possession of 100 pounds of marijuana with intent to distribute, in violation of 21 U.S. Code, § 841(a)(1), and 18 U.S.Code, § 2. The conspiracy count charged several overt acts in furtherance of the conspiracy, committed by Palacios or Garcia or both. Cecilia Garcia was tried separately and found guilty by a jury.

Palacios had three jury trials, the first two resulting in mistrials. ¹ In the third trial, the court denied appellant's motions for judgment of acquittal. The third jury convicted Palacios on both charges. The trial court sentenced him to consecutive 5 year confinement terms to be followed by a special parole term of 5 years on each count.

While Palacios raises a number of issues ² on appeal, we believe that the second point urged, the insufficiency of the evidence, presents the most serious attack on the convictions. We conclude from our study of the record in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), that we should reverse on this ground. Accordingly, we find it unnecessary to reach the other six issues.

I. THE UNDERLYING FACTS

On September 9, 1975, Leonard Williams, an agent with the Drug Enforcement Administration (DEA) was prompted by a phone call from an informer to establish surveillance of various travel bureau offices in downtown Laredo, Texas. He instructed Special DEA Agent George Tomlinson to attempt to locate Regino Palacios and a young female named Cecilia wearing pink slacks and a pink blouse. On this same day, Cecilia Garcia, who fit the above description, embarked on a trip to visit her mother in St. Paul, Minnesota, via Chicago, Illinois. She took a taxi to a Phillips 66 gas station where, after some delay, the travel bureau van going to Chicago picked her up. Her baggage was placed on top of the van. The van then proceeded to the Transportes Hispanos Travel Agency office in Laredo, with DEA agents keeping Garcia and the van under surveillance. The next stop was a restaurant called "El Taquito Millonario No. 2" where more passengers were picked up. Here, the appellant Palacios was seen talking to Cecilia Garcia. Finally, the van left Laredo travelling north on Interstate 35 (commonly known as the San Antonio Highway). Agents of the Immigration and Naturalization Service halted the van at a Border Patrol permanent check-point approximately eleven miles north of Laredo. The driver was ordered to unload the baggage from the roof of the van and all

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passengers were asked to claim their baggage. All baggage was claimed except three suitcases and a Schlitz beer carton box. When the driver was questioned about the ownership of the unclaimed luggage, he pointed to co-defendant Cecilia Garcia. Garcia denied ownership. The agents opened this luggage and found 100 pounds of marijuana. At this point, a DEA agent read the Miranda warning to Garcia and arrested her. The DEA agents then questioned her about the appellant and the suitcases filled with marijuana. An address book found in Garcia's purse contained a Chicago address and telephone number in the appellant's handwriting. During this time, Palacios drove past the checkpoint in a maroon van. His arrest followed in a short time. Garcia was subsequently taken to the DEA offices for further questioning. At this time she signed an unsworn statement which caused much confusion at appellant Palacios' trial.

At the third trial the government called Garcia as its first witness. After asking her name, age, and place of birth, government counsel next asked her if she is the same Cecilia Garcia who was indicted and found guilty of possessing marijuana and of conspiring with the appellant to do so. During this direct examination, Garcia admitted having a very close relationship with the appellant. She stated that she considered herself to be his common law wife. Government counsel then began to question Garcia regarding the three page statement she gave to the DEA agents after she was arrested and searched on September 9, 1975. She admitted making the statement, but she denied the truth of much of it. Government counsel went through the statement line by line and had Garcia read most of it aloud in court. She claimed that she had lied in the prior statement because she wanted to take revenge against Palacios for hurting her. ³ Garcia admitted that the Chicago address in her address book was in appellant's handwriting, that she had seen him the morning of the day she was arrested, and again, briefly, at the restaurant "El Taquito Millonario". She denied, however, that the appellant had anything to do with the marijuana found in her possession. Defense counsel repeatedly asked the court to instruct the jury that the prior inconsistent statement, in which Garcia directly implicated Palacios, was not substantive evidence. The trial judge declined to do so during Garcia's examination. In his final charge, however, the judge instructed the jury to consider Cecilia Garcia's prior inconsistent statements only for impeachment purposes.

Most of the government's other witnesses ⁴ simply stated that they had heard Garcia implicate Palacios in the marijuana offense. DEA agent Leonard Williams testified that he heard Garcia state at the time of her arrest that she had received the marijuana from Palacios. Agent Williams further stated that in 1974, Palacios was arrested with some other persons on a marijuana charge. The resulting case against Palacios, however, was dismissed. DEA agent George Tomlinson testified that he had participated in the 1974 arrest, and that, while at the DEA office, Palacios dropped a folded paper napkin containing what appeared to be marijuana.

Palacios called one witness, and then testified himself. He denied giving Garcia the suitcases filled with marijuana. On cross-examination it was revealed that he did not pay income taxes. It was also established that the appellant had been stopped a few months subsequent to the time of the alleged offenses in the instant case and found in possession of approximately $4,000.

II. GARCIA'S PRIOR INCONSISTENT STATEMENT

" Prior statements of witnesses are hearsay and are generally inadmissible as

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affirmative proof." United States v. Gregory, 472 F.2d 484, 487 (5th Cir. 1973). It is a well-established principle of evidence that prior inconsistent statements of a witness are admissible to impeach that witness. See Slade v. United States, 267...