U.S. v. Rios, No. 78-1519

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore HOLLOWAY, McWILLIAMS and DOYLE; HOLLOWAY
Citation611 F.2d 1335
Decision Date21 December 1979
Docket NumberNo. 78-1519
Parties5 Fed. R. Evid. Serv. 301 UNITED STATES of America, Plaintiff-Appellee, v. Juan G. RIOS, Defendant-Appellant.

Page 1335

611 F.2d 1335
5 Fed. R. Evid. Serv. 301
UNITED STATES of America, Plaintiff-Appellee,
v.
Juan G. RIOS, Defendant-Appellant.
No. 78-1519.
United States Court of Appeals,
Tenth Circuit.
Argued and Submitted July 19, 1979.
Decided Dec. 21, 1979.

Page 1337

Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Albuquerque, N. M., on brief), for plaintiff-appellee.

Charles W. Daniels, Albuquerque, N. M. (John W. Boyd of Freedman, Boyd & Daniels, Albuquerque, N. M., on brief), for defendant-appellant.

Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.

Page 1338

HOLLOWAY, Circuit Judge.

This is a direct appeal by the defendant-appellant Juan G. Rios from his conviction on each count of a three-count indictment charging Rios and Leo T. Valenzuela with conspiracy to commit offenses defined in 21 U.S.C. §§ 841(a)(1) 1 and 952(a), 2 with possession of heroin, a controlled substance, with intent to distribute, and with distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (aiding and abetting). Appellant was sentenced to a term of ten years to be followed by a five year special parole term, served concurrently, as to each count.

Appellant's basic contentions on appeal are that the trial court erred in: (1) failing to grant a mistrial due to prosecutorial misconduct during closing argument; (2) refusing to give a requested jury instruction on the proper use of a coconspirator's acts and statements; (3) admitting inadmissible evidence and excluding admissible evidence; and (4) refusing to grant a pretrial motion to suppress evidence. It is convenient to highlight only a few facts initially and to discuss the remainder separately as they relate to each argument.

Appellant Rios was accused of being involved in illegal drug-related activities which culminated in the sale of heroin to government undercover agents in Las Cruces, New Mexico, on June 4, 1976. On that date agents of the Drug Enforcement Administration (DEA) along with agents of the Las Cruces Police, Metro Narcotics Division, purchased from Eddie and Albert Vega approximately one kilo (2.2 pounds) of brown powder which contained heroin. III R. 29-30. The Vega brothers, who were unindicted coconspirators, and Leo Valenzuela, who was a brother-in-law to the Vega brothers and a codefendant to appellant, were prosecuted in a New Mexico state court proceeding for offenses arising out of this incident. Subsequent to the arrest of the Vega brothers which occurred simultaneously with the sale, government agents procured a search warrant for a sixty foot mobile home in which Valenzuela resided at the time. The search uncovered approximately one kilo of brown powder containing heroin, two sets of scales one of which apparently was used for weighing the heroin, and a notebook containing notations of various transactions made. II Supp. R. 10-11; IV R. 280-82.

Following the prosecution of the Vegas in state court the brothers made a determination to testify against the appellant. At Rios' trial the Government's case was primarily constructed through the testimony of the Vega brothers and Kenneth Bonney, an immunized witness who owned the land on which the mobile home sat. IV R. 411, 438-39; V R. 473-74.

Appellant testified at his trial, admitted that he knew the parties involved in the incident, but denied all involvement in the drug transaction. The credibility of these witnesses became the most critical issue for the jury to resolve.

Page 1339

I

The claim of error in failing to give a limiting instruction

on the use of coconspirator's statements

We turn first to appellant's claim that the trial court erred in failing to instruct the jury on the circumstances under which it could consider the declarations of appellant's alleged coconspirators as evidence against him.

Throughout the trial there was testimony concerning out-of-court statements made by certain alleged coconspirators. Initially Eddie Vega's testimony about Leo Valenzuela's out-of-court statements was admitted over defense objection without explanation by the trial court. III R. 65. Subsequently the trial court permitted a continuing objection to testimony concerning "any statements made by Mr. Juan Rios or Mr. Valenzuela." 3 Moments later, defense counsel asked the court whether it was going to apply the prior ruling to the hearsay statements of Albert Vega. After the prosecutor told the court that "(i)t's a part of the conspiracy," the testimony was admitted. III R. 85-86. Other similar statements were admitted during the Government's case-in-chief, apparently on the theory that the statements were made by coconspirators during the course and in furtherance of the conspiracy. 4

At no time during the presentation of this testimony did defense counsel ask the district court for a cautionary instruction to the jury; nor did the trial court, Sua sponte, give such an instruction. More importantly, however, the trial court never made an explicit determination for the record regarding the admissibility of the statements; nor did it specify the reasons for rejecting the last paragraph of the appellant's requested jury instruction concerning the proper use of coconspirators' actions and declarations. 5

On this appeal, the Government acknowledges that the trial court never specifically instructed the jury at any time during the trial on the conditions which had to be satisfied for evidence of the acts and statements of others to be considered in deciding the guilt of appellant. Brief of the Appellee at 40. Instead it basically contends that defense counsel's request for a limiting instruction was untimely because it was not made during the course of the trial; that a general cautionary instruction at the end of the trial is "superfluous" when the independent evidence of a defendant's involvement

Page 1340

in the conspiracy is "overwhelming"; and that the trial court's other instructions at the end of the trial sufficiently protected appellant's interests. Brief of Appellee at 38-41.

It is axiomatic that statements made by one conspirator out of the presence of other coconspirators may be used not only against the declarant but also against his coconspirators where made during the course and in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E); See also United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039. This rule presents questions about the role of the trial court and the jury in determining the admissibility and the use of these statements. In United States v. Andrews, 585 F.2d 961 (10th Cir.), we determined that Rule 104 of the new Federal Rules of Evidence eliminated the jury's role in the admissibility decision and required the trial court to determine alone whether the statements are admissible. 6 Prior to the new rules this Circuit followed the view which required the trial court, as a preliminary matter, to determine whether the Government had introduced Prima facie independent evidence showing that the conspiracy existed, that the declarant and the defendant were members of the conspiracy, and that the statement was made during the course and in furtherance of the conspiracy. Once the Prima facie case had been proven, the coconspirators' declarations were conditionally admitted by the court. The statements, however, could be used by the jury in its deliberations on the substantive offenses only if the jury found that the Government had established, beyond a reasonable doubt, the three elements enumerated above. Thus, under the former procedure, the ultimate determination of admissibility and use of the coconspirator's statements was a question for the jury. See United States v. Petersen, 611 F.2d 1313, 1328 10th Cir. 1979).

We have recently determined that our decision in Andrews is not to be applied retroactively. United States v. Petersen, supra, at 1328-1329. This is not to say that a district court would have committed reversible error if it had followed the approach adopted by the new federal rules during the interim period between their effective date and our Andrews decision. See United States v. Mackedon, 562 F.2d 103, 105 (1st Cir.). Yet, in the absence of any significant indication that the trial judge was applying the method mandated by Rule 104 and was making the requisite determinations himself, we must assume that the court was following the former rule which required an instruction to the jury on the determinations to be made before the coconspirators' statements could be considered. 7

To properly implement the former procedure on consideration of coconspirators' statements it was essential that the trial court instruct the jury on the conditions to be met before such evidence could be considered. 8 1 J. Weinstein & M. Berger,

Page 1341

Weinstein's Evidence P 104(05) at 104-44.6 (1976). This type of instruction was the primary means of protecting a defendant who was charged vicariously with the out-of-court statements of another. See Dennis v. United States, 346 F.2d 10, 16 (10th Cir.), Rev'd on other grounds, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973. While we have suggested that "it is preferable to give some cautionary instruction at the time of admission of the proof, with further instructions in the final charge," United States v. Krohn, 573 F.2d 1382, 1387 n. 5 (10th Cir.), Cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792; See also United States v. Pennett, 496 F.2d 293, 296 (10th Cir.), we have only expressly required an instruction at the time the evidence was admitted or in the final charge to the jury. See Lowther v. United States, 455 F.2d 657, 665 (10th Cir.), Cert. denied, 409 U.S. 857, 93 S.Ct. 139, 34 L.Ed.2d 102; Troutman v. United States, 100 F.2d 628, 634 (10th Cir.).

In the instant case, despite a request by defense counsel, no instruction was given to the jury prior to their deliberations which adequately informed them of the limitations...

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142 practice notes
  • People v. Mayoff
    • United States
    • United States State Supreme Court (California)
    • December 31, 1986
    ...from the air, but there is no evidence that this opinion was shared with, or by, Agent Brown. (Cf., United States v. Rios (10th Cir.1979) 611 F.2d 1335, Moreover, any omission in that regard neither undermined probable cause nor made the warrant affidavit "materially [729 P.2d 178] misleadi......
  • Hopkinson v. Shillinger, No. 86-2571
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 23, 1989
    ...and the sheriff's office, all decided prior to trial that Hopkinson was guilty. Such argument is improper. See United States v. Rios, 611 F.2d 1335, 1343 (10th Cir.1979) (prosecutor may not respond to defense counsel's argument by expressing personal opinion of defendant's guilt); A.B.A. Mo......
  • U.S. v. Harris, No. 01-2027.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 30, 2002
    ...to consider evidence introduced at the suppression hearing, as well as any evidence properly presented at trial, United States v. Rios, 611 F.2d 1335, 1344 & n. 14 (10th Cir.1979) (citation omitted), and we view all of the evidence in the light most favorable to the ruling of the district c......
  • United States v. Young, No. 83-469
    • United States
    • United States Supreme Court
    • February 20, 1985
    ...11. Until this decision, the Tenth Circuit's "rule" appeared largely as dicta in earlier opinions. See, e.g., United States v. Rios, 611 F.2d 1335, 1343 (CA10 1979); United States v. Latimer, 511 F.2d 498, 503 (CA10 1975); United States v. Martinez, 487 F.2d 973, 977 (CA10 1973); United Sta......
  • Request a trial to view additional results
142 cases
  • People v. Mayoff
    • United States
    • United States State Supreme Court (California)
    • December 31, 1986
    ...from the air, but there is no evidence that this opinion was shared with, or by, Agent Brown. (Cf., United States v. Rios (10th Cir.1979) 611 F.2d 1335, Moreover, any omission in that regard neither undermined probable cause nor made the warrant affidavit "materially [729 P.2d 178] misleadi......
  • Hopkinson v. Shillinger, No. 86-2571
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 23, 1989
    ...and the sheriff's office, all decided prior to trial that Hopkinson was guilty. Such argument is improper. See United States v. Rios, 611 F.2d 1335, 1343 (10th Cir.1979) (prosecutor may not respond to defense counsel's argument by expressing personal opinion of defendant's guilt); A.B.A. Mo......
  • U.S. v. Harris, No. 01-2027.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 30, 2002
    ...to consider evidence introduced at the suppression hearing, as well as any evidence properly presented at trial, United States v. Rios, 611 F.2d 1335, 1344 & n. 14 (10th Cir.1979) (citation omitted), and we view all of the evidence in the light most favorable to the ruling of the district c......
  • United States v. Young, No. 83-469
    • United States
    • United States Supreme Court
    • February 20, 1985
    ...11. Until this decision, the Tenth Circuit's "rule" appeared largely as dicta in earlier opinions. See, e.g., United States v. Rios, 611 F.2d 1335, 1343 (CA10 1979); United States v. Latimer, 511 F.2d 498, 503 (CA10 1975); United States v. Martinez, 487 F.2d 973, 977 (CA10 1973); United Sta......
  • Request a trial to view additional results

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