U.S. v. Rios Ruiz, 77-1127

• Decision Date: 28 June 1978
• Docket Number: No. 77-1127,77-1127
• Citation: 579 F.2d 670
• Parties: , 3 Fed. R. Evid. Serv. 64 UNITED STATES of America, Appellee, v. Angel RIOS RUIZ, a/k/a Junior Rios, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 670

579 F.2d 670

48 A.L.R.Fed. 911, 3 Fed. R. Evid. Serv. 64

UNITED STATES of America, Appellee, v. Angel RIOS RUIZ, a/k/a Junior Rios, Defendant-Appellant.

No. 77-1127.

United States Court of Appeals First Circuit.

Argued Feb. 10, 1978.

Decided June 28, 1978.

Hector M. Laffitte, Hato Rey, P. R., with whom Laffitte & Dominguez, Hato Rey, P. R., was on brief, for defendant-appellant.

John C. Hoyle, Atty., Dept. of Justice, Washington, D. C., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., Drew S. Days, III, Asst. Atty. Gen., and Frank D. Allen, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The facts giving rise to this case occurred during a drug raid and mass arrest on April 9, 1975, of approximately two hundred persons at the Cuesta Vieja public housing project in Aguadilla, Puerto Rico. Two of those arrested, Maria Elena Cornier and William F. Pellegrino, ¹ claimed that they were beaten by defendant-appellant, Angel Rios Ruiz, and a fellow police officer, Cesar A. Mercado Negron. Rios Ruiz and Mercado Negron were subsequently indicted in two counts for beating and assaulting Cornier and Pellegrino and depriving them of their constitutional right not to be deprived of liberty without due process of law in violation of 18 U.S.C. § 242. ² After a jury Appellant assigns five specific errors to the trial. As we must, we review the record in the light most favorable to the government. There is no point in reciting what happened except to note that, although the facts were hotly contested, there was sufficient evidence for the jury to find appellant guilty as to Count II. Appellant apparently concedes this because no question has been raised as to the sufficiency of the evidence.

trial, Mercado Negron was acquitted on both counts. Appellant was found not guilty as to Count I, beating and assaulting Cornier, and found guilty as to Count II, beating and assaulting Pellegrino. This appeal followed.

We discuss appellant's claimed errors in the order in which they have been briefed.

1. Allowing in Evidence the Fact That Two Defense Witnesses Had Been Suspended from the Puerto Rican Police Force for Ten Days for the Excessive Use of Force on Unrelated Occasions.

Two witnesses, Police Office Juan Valentin Hernandez and Police Sergeant Manual Vargas, testified that the defendants did not beat, assault or mistreat either of the complainants. The trial judge, after lengthy conferences with the attorneys, decided to permit the fact of the suspensions into evidence. This evidence was submitted to the jury by way of a stipulation in order to avoid recalling the witness for cross-examination. Defense counsel agreed to use of the stipulation, but not to the admission of the evidence. It was also stipulated that Sergeant Vargas had been suspended for five days on February 12, 1976, for allowing officers under his command and in his presence to use excessive force. The ten-day suspension of Officer Valentin Hernandez started on October 7, 1974; Sergeant Vargas' suspension commenced on December 9, 1975. The court instructed the jury immediately after the stipulations were read as follows:

"All right, ladies and gentlemen, as I have perhaps told you earlier these are stipulations that have saved us the time of getting these witnesses back here. And it merely takes the place of their testimony, if they were here. I have allowed these statements to be made, these stipulations in merely for the purpose of aiding you in determining what weight you should give the testimony of those witnesses.

"You are going to be required to determine how much weight you want to give to their testimony, and whether their testimony is true or whether it's influenced by some facts. This is not evidence that these defendants did anything, and you must not consider it as evidence that these defendants may have done the same thing. It's not evidence to that. It's in solely for the purpose of determining what weight to give to the testimony of those who did testify.

"Do you understand my instructions?

"(Jury responded in the affirmative.)"

Appellant argues that he was "devastatingly prejudiced" by this evidence, and that its admission violated Federal Rule of Evidence 608(b), ³ and the generally accepted A similar problem arises in a criminal case when evidence of prior misconduct not the subject of a conviction, and, therefore, not provable by extrinsic evidence pursuant to Rule 608, is relevant to bias. Here again, the court must exercise its discretion to balance the need for the evidence against the underlying policy restricting impeachment by this type of evidence.

doctrine that a witness may not be impeached by extrinsic evidence of prior misconduct unless it has resulted in a felony conviction which is embodied in Federal Rule of Evidence 609(a). ⁴ The evidentiary question is whether the suspension of the police officers, for conduct strikingly similar to that for which the defendants were on trial, was relevant as to the bias of the witnesses. Weinstein pinpoints the problem as follows:

3 Weinstein's Evidence § 607(03), p. 607-26. The "bias" exception to the strictures of Federal Rules of Evidence 608(b) and 609(a) has been generally recognized. In United States v. Robinson, 174 U.S.App.D.C. 224, 530 F.2d 1076 (1976), testimony that an alibi witness had been a joint venturer with the defendant in the buying and selling of drugs and that charges had been brought against the witness but later dropped was allowed in evidence on the question of the witness's bias. The Court cited to Wigmore and quoted Weinstein in explaining the reason:

The dominant principle is that evidence showing the "emotional partiality" of a witness "is always significant in assessing credibility," for "the trier must be sufficiently informed of the underlying relationships, circumstances and influences operating on the witness so that, in light of his experience, he can determine whether a mutation in testimony could reasonably be expected as a probable human reaction. Courts are therefore very liberal in accepting testimony relevant to a showing of bias." 3 Weinstein's Evidence, Supra. Id. at 1079.

We emphasize what was noted in passing in Robinson; that there is a significant difference between introducing misconduct evidence as to the defendant and as to a witness not on trial. The general rule has been stated in United States v. Harris, 542 F.2d 1283, 1302 (7th Cir. 1976): "Evidence of prior misconduct which did not result in a conviction generally may not be introduced to show a witness' bad character. Such evidence may be introduced for the purpose of showing that a witness has cause to be biased." See also United States v. Hodnett, 537 F.2d 828 (5th Cir. 1976), in which testimony as to a defense witness's attitude toward drugs and her presence at a prior illegal drug transaction to which the defendant was not a party was allowed in evidence on the question of bias of the witness. As noted in United States v. Maynard, 155 U.S.App.D.C. 223, 476 F.2d 1170, 1174 (1973): "Since the range of facts from which bias may be inferred is vast, hard and fast rules permitting or excluding specific types of impeachment evidence might be unwise."

The question is always a difficult one, not only because of the language of Rules 608(b) and 609(a), but because of Rule 403 ⁵ which allows the trial judge to exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." In United States v. Eatherton, 519 F.2d 603, 611 (1st Cir. 1975), we pointed out: "The test of admissibility requires balancing the prejudicial potential of the evidence against its probative value, and that task is committed primarily to the trial court." This requires a balancing by the district court in each case. The record shows that the district court here took its balancing task seriously. ⁶ Our review of the factors tending to show bias leads us to affirm the admission of the evidence. We first note that there is no dispute that the prior misconduct actually occurred or, at least, that the witnesses were punished for it. Thus, one of the policy reasons for Rule 608(b), avoiding fact-finding detours to determine whether allegations of prior misconduct on the part of the witness are accurate, is not relevant to this case. See Weinstein § 608(05), 608-22. Second is the nature of the misconduct which was of the same type for which the defendant was on trial. Third, and to our minds very significant, is the fact that the witness and defendant were brother police officers and as such, part of an organization that is particularly susceptible to being charged with the offense for which defendant was indicted and tried. And finally, the manner in which the evidence was presented limited its prejudicial impact. This misconduct of the witness was not of the magnitude to warrant more than short suspensions and no inflammatory details were brought out. In the light of all of the above factors, we cannot say that the trial judge abused his discretion in admitting the evidence.

2. The Exclusion of Three Police Officers in Uniform from the Courtroom.

On the fifth day of trial, the district judge asked three policemen who were in uniform to leave the courtroom. Before taking this action, he explained his reasons to counsel.

THE COURT: Gentlemen, I am a little concerned that we have three police officers in uniform in the court. It smacks a little bit of pressurizing the jury and intimidating the jury. I am disturbed about the fact, if there is to be any intimidation of the jury. Whoever is guilty is going to spend some time in jail and I am going to be very certain that that occurs. Maybe these gentlemen here are for no illegitimate purposes, they are entitled to be here. But I am not very happy to find three officers with their badges and...