U.S. v. Ramirez, 88-5447
| Decision Date | 04 April 1989 |
| Docket Number | No. 88-5447,88-5447 |
| Citation | 871 F.2d 582 |
| Parties | 28 Fed. R. Evid. Serv. 97 UNITED STATES of America, Plaintiff-Appellee, v. Hector RAMIREZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Louis DeFalaise, U.S. Atty., Jane E. Graham, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Lexington, Ky., for plaintiff-appellee.
James F. Perkins (argued), New Haven, Ky., for defendant-appellant.
Before GUY and NORRIS, Circuit Judges, and BELL, District Judge. *
Defendant, Hector Ramirez, was convicted by a jury of possession of cocaine and conspiracy to possess cocaine with the intent to distribute. 1 The principal witness against Ramirez at trial was co-conspirator, Karla Espinal. 2 Espinal had also testified against other members of this conspiracy in two previous trials.
On the first day of Ramirez's trial, Roy Stout, a codefendant, filed a motion seeking to compel Karla Espinal to submit to a psychiatric examination to determine her competency as a witness in the case. That motion was based on the allegation that Espinal, in her testimony in the two previous trials, had admitted using substantial amounts of cocaine during the period covered by the offense, that is, May through August of 1987. Stout also sought permission to introduce psychiatric testimony relative to the effect of the drug Xanax, which had been prescribed by a physician for Espinal during the time she was in federal custody. Similar motions had been made and denied in the previous trials in which Espinal testified.
District Judge Siler heard the oral motion notwithstanding that it was made long after the motion cut-off date, and also allowed an offer of proof from the defense psychiatrist outside of the presence of the jury. Judge Siler denied the motions, and Ramirez now appeals claiming error in the denial. 3 Upon a review of the record, we conclude that the district judge did not abuse his discretion and affirm.
To address the issue raised on appeal, it is not necessary to state the facts other than briefly. 4 Ramirez and Espinal both had been involved with drugs for a number of years. Espinal had a very serious cocaine addiction and had also sold drugs. Both her present and former husbands were in prison for drug dealing and Ramirez was a cellmate of her ex-husband. Shortly after Ramirez was released from prison, but prior to the time charged in the indictment, he had provided Espinal with two kilos of cocaine for resale. In July of 1987, Ramirez called Espinal and offered to "front" at least five kilos of cocaine to her for resale. It was highly unusual to receive such an offer with no deposit being required. Espinal was suspicious of the offer because of these unusual circumstances and suspected that her ex-husband, who was then incarcerated, was either testing her or "setting her up." Espinal decided to contact local Lexington, Kentucky, police, but they did not pursue the matter. Espinal then travelled to Miami and met Ramirez, and they returned by air to Lexington under assumed names to await the auto delivery of the cocaine by courier. Espinal continued to worry since, even if the transaction was not a set-up, she really did not have the contacts to dispose of five kilos of cocaine in the short time that was provided. When the cocaine arrived, the situation became even more perilous since Espinal was given seven kilos of cocaine. After again attempting unsuccessfully to secure the help of the local police, she decided to resolve her dilemma by committing suicide. Fortified with cocaine and vodka and armed with a .38 caliber pistol, she went to the Kentucky Horse Park with the intention of killing herself. She was observed there by a security guard to whom she blurted out her story, and the guard helped in contacting federal authorities. The result was the arrest shortly thereafter of Ramirez and several others.
There is no claim by defendant that at the time of the trial Espinal was under the influence of cocaine. She had, in fact, been clean for the five months she had been in federal custody preceding the trial. Ramirez argues, however, that cocaine usage during the time period charged in the indictment rendered her an "incompetent" witness because her memory of those events could not be trusted as reliable. Ramirez was prepared to offer the opinion of a psychiatrist in support of his contention. Ramirez also argues that the taking of the anti-anxiety drug Xanax rendered Espinal incompetent.
Although Ramirez is imprecise in his terminology, the issue on appeal implicates the question of credibility as well as the question of competency. As was stated in United States v. Brown, 770 F.2d 768, 770 (9th Cir.), cert. denied, 474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985): "The credibility of a witness is a jury question but the competency of the witness to testify is for the judge to decide." Although the question of competency is for the judge to decide, in a federal criminal prosecution this decision must be made against the backdrop of Fed.R.Evid. 601 which provides:
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
What must be remembered, and is often confused, is that "competency" is a matter of status not ability. Thus, the only two groups of persons specifically rendered incompetent as witnesses by the Federal Rules of Evidence are judges (Rule 605) and jurors (Rule 606). 5 The authority of the court to control the admissibility of the testimony of persons so impaired in some manner that they cannot give meaningful testimony is to be found outside of Rule 601....
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