U.S. v. Pena

• Decision Date: 03 March 1976
• Docket Number: No. 75--1608,75--1608
• Citation: 527 F.2d 1356
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert John PENA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1356

527 F.2d 1356

UNITED STATES of America, Plaintiff-Appellee, v. Albert John PENA, Defendant-Appellant.

No. 75--1608.

United States Court of Appeals Fifth Circuit.

March 3, 1976.

Philip S. Greene, Houston, Tex., Gerald M. Birnberg, Bellaire, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U.S. Atty., 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 WISDOM, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

Albert John Pena was convicted by a jury on a three-count indictment charging distribution of heroin, possession with intent to distribute heroin and conspiracy to distribute heroin. 21 U.S.C. §§ 841(a)(1), 846. He received an 8-year sentence on Count I (distribution). Imposition of sentence on Counts II and III (possession and conspiracy) was suspended. In this direct appeal, Pena raises four issues for review, claiming that: (1) testimony concerning a statement made by a confidential informant was improperly excluded; (2) the delay preceding trial and retrial violated the local plan of the Southern District of Texas and the Sixth Amendment; (3) the evidence was insufficient to sustain a conviction on the conspiracy count; and (4) the charge to the jury was erroneous and insufficient. Finding merit with regard to issue (3) only, we reverse as to Count III (conspiracy) and affirm the conviction in all other respects.

The charges against Pena grew out of a heroin transaction alleged to have taken place at the New Manhattan Lounge in Houston, Texas, on July 16, 1971. Viewing the evidence in the light most favorable to the government, we can distill the following salient facts from testimony of Officer Legarreta, a special DEA undercover agent. Legarreta testified that early in the evening, he and John Rubio, a confidential informant, met with Pena and arranged for the defendant to supply them with two ounces of heroin. To secure the drug, Pena attempted to locate Vincente Vega. At one point, defendant left the lounge and returned with Ruben Rubio (no relation to John Rubio, the informant). The four men waited until Vega arrived, accompanied by Adan Garza. Vaga told Legarreta that he did not have the heroin with him; he left shortly thereafter, allegedly to pick up the contraband. When Vega returned, he went directly to the men's restroom. Pena followed Vega, with Legarreta close behind both men. As he opened the bathroom door, Legarreta saw Vega place two packages on a shelf and leave the room. Pena took down the packages and handed them to Legarreta in exchange for a package containing $1200. It was later established that the packages handed to Legarreta by Pena contained heroin.

Pena's version of the incident is not totally dissimilar. The crucial difference is that Pena claims that he never handed the officer a package but merely took the money from Legarreta in his capacity as agent for John Rubio. According to the defendant, John Rubio mistakenly believed that Pena had killed his brother-in-law. To avenge this death, Rubio decided to frame Pena by requesting that the defendant receive some 'reward' money from Legarreta and hold it for Rubio until he, Rubio, could find a safe place to store it. Pena claims he simply performed this task and delivered the money to Rubio, never aware that he was involved in an illegal drug transaction. In support of his defensive theory, Pena sought to introduce testimony establishing that in November of 1971 Rubio confessed his role in the 'setup' after realizing that Pena was not responsible for his brother-in-law's death. Rubio did not testify at trial, having dropped out of sight shortly after his alleged confession. The jury chose to reject Pena's defense and returned a guilty verdict on all counts. Vincente Vega, Pena's co-defendant, was found not guilty.

I. TESTIMONY OF JESSE GARCIA

As his first assignment of error, Pena contends that the trial judge erroneously excluded a crucial portion of the testimony of defense witness Jesse Garcia, a mutual friend of Pena and Vega. On direct examination, Garcia testified that he spoke with the informant Rubio at a restaurant in November 1971. Defense counsel then asked Garcia to relate the substance of his conversation with Rubio as it related to Pena. The government objected on the basis that the informant's out-of-court declaration was hearsay. The court sustained the objection. For purposes of this appeal, defendant adduced the following testimony from Garcia outside the presence of the jury.

Q. Mr. Garcia, as a result of the conversation that you had, what, in effect, did Mr. John Rubio tell you with regard to Albert John Pena and this case?

A. Well, like I said, I ran into him in this restaurant and I asked him about Albert, how he was doing and all this, and he was drinking a beer and having something to eat there, and so was I, and--

Q. (interrupting) Speak up a little so we can hear you.

A.--this other friend of mine, you see, we had stopped by there to eat--I usually stop by there most of the time--and I asked him about Albert, and he told me that he had gotten even with Albert on account of he believed that Albert had killed his brother, or something like this.

Q. How did he get even with Albert?

A. He told me that he had set him up on selling something or other, and that Albert was supposed to pick up some money from some police officer, but that he didn't know that the man that was going to turn him over some money was a police officer.

Q. Okay. And he told you that he had set Albert up?

A. Yes, sir.

Q. That he had, in fact, supplied the heroin that was sold--or, the substance that was sold, and that he got the money from Albert?

A. That--

Q. (interrupting) John Rubio had gotten the money back from Albert?

A. Well, he told me that he had gotten the money back from Albert, yes.

Q. All right.

Pena challenges the trial court's evidentiary ruling on three grounds. First, he claims that the statements are not hearsay but rather fall under the non-hearsay rubric of admissions of a party-opponent. Second, even if the statement is hearsay, Pena claims it is admissible as a declaration against penal interest. Third, Pena contends that the exclusion of Garcia's testimony deprived him of a fair trial and violated his due process rights as enunciated by the Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

While not unrelated, each contention requires separate treatment. It is undisputed that a party's out-of-court admission is admissible against him and is not generally considered to be hearsay. See generally C. McCormick, Evidence, § 262 at 628--631 (Cleary ed. 1972). In many instances, the statement of an agent of a party will likewise be admissible as a vicarious or representative admission of his principal. See generally C. McCormick, Evidence, § 267 at 639--47 (Cleary ed. 1972). The new Federal Rules of Evidence provide that 'a statement is not hearsay if . . . the statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or . . . (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.' Fed.R.Evid. 801(d)(2).

In this case, Pena argues that since Rubio was employed as a 'special employee of the DEA,' his statements should be imputed to the government. In other contexts, the government has been charged with the consequences of actions of informants who assist law enforcement officers in detecting crime, even though the informant is not a regular employee and is paid on a 'cash and carry' basis. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir. 1975) (entrapment). The court has not decided, however, whether such persons should be deemed agents of the United States for purposes of the rule as to vicarious admissions by a party-opponent. We do not reach that issue today. Even assuming for the sake of discussion that Rubio's status as an informant carried with it the power to make admissions on the government's behalf, the statements in question were made at a time when his relationship with the government had ceased. The prohibited transaction occurred in July; Rubio's conversation with Garcia was asserted to have taken place sometime in November In the interim, Rubio apparently had no significant contacts with his 'employers,' with the exception of a single telephone call to an agent at the BNDD (DEA's predecessor). His November statement did not concern 'a matter within the scope of his agency . . . made during the existence of the relatioship' and thus may not be saved from its hearsay status by the rule on admissions.

Similarly, Pena is not aided by the analogy of the new federal evidence rule creating a hearsay exception for declarations against penal interest. The rule renders admissible any 'statement which . . . so far tended to subject (the declarant) to . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.' Fed.R.Evid. 804(b)(3). Assuming arguendo that this court might choose to be guided by the rule in a case which arose prior to its effective date, it is clear that Rubio's statements were not sufficiently self-incriminatory to fall within the ambit of the rule. The proffered testimony discloses only that Rubio admitted that he had gotten even with Pena by 'setting him up' to be accused of selling something. There is no showing that Rubio falsified evidence; nor was it shown that Rubio involved Pena in a drug transaction without Pena's knowledge. Rubio could well have been discharging his proper role as an informant and at the same time intending to use his status to 'get even' with one he believed...