U.S. v. Torres-Flores

• Decision Date: 10 September 1987
• Docket Number: TORRES-FLORES,No. 86-2940,86-2940
• Parties: 23 Fed. R. Evid. Serv. 1075 UNITED STATES of America, Plaintiff-Appellee, v. Mario Antonio, a/k/a Leopoldo Hernandez-Segovia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1031

827 F.2d 1031

23 Fed. R. Evid. Serv. 1075

UNITED STATES of America, Plaintiff-Appellee, v. Mario Antonio TORRES-FLORES, a/k/a Leopoldo

Hernandez-Segovia, Defendant-Appellant.

No. 86-2940.

United States Court of Appeals, Fifth Circuit.

Sept. 10, 1987.

Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Thomas G. Lindenmuth, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.

James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before RUBIN, GARZA and JOLLY, Circuit Judges.

GARZA, Circuit Judge:

Mario Antonio Torres-Flores was accused of assaulting an agent of the United States Border Patrol in violation of 18 U.S.C. Sec. 111. The identity of the person who fired a weapon at the agent was the only issue in dispute. The Government presented a single witness for identification, and a series of potentially suggestive photographs as evidence. After trial by jury, the defendant was found guilty, and the court imposed a maximum sentence of ten years imprisonment as provided in the statute.

The defendant challenges the district court's ruling to admit evidence that the defendant had been apprehended for unspecified offenses at other times at the site of the assault. Additionally, the defendant argues that the court erred in admitting a photograph of him and a series of photographs taken from a "rogues' gallery" of criminals. Our study of the record indicates that the court did not abuse its discretion in permitting testimony of the prior apprehensions. It did not unduly prejudice the defendant with evidence of bad character. However, the defendant was denied a fair trial because the photographs were introduced in an impermissibly suggestive manner. We are compelled, therefore, to reverse and remand the case for a new trial.

I. Facts and Proceedings

On March 13, 1986, at about 5:30 in the afternoon, Pedro Rosario, an agent of the United States Border Patrol, was on line watch at the Rio Grande River. He was in his vehicle, patrolling the United States-Mexican border at river point 54 in Brownsville, Texas. River point 54 is known for its heavy volume of illegal alien traffic. As he was travelling along the levee which ran parallel to the Rio Grande River, Rosario observed three men walking between the levee and the river. The men were about three hundred feet away from Rosario. The men saw Rosario and fled, heading south toward the river and Mexico. He parked his vehicle and chased them until they reached the river.

The closest man was still in the United States just a few feet from the river, the middle man was one-third of the way across the river, and the third man, the man furthest away from Rosario, was halfway across the river. Rosario later testified that his attention was on the man closest to him. The Rio Grande was shallow at point 54 and the men were running across it. Rosario yelled in Spanish at the man closest to him to "come over here." Suddenly, the man furthest away from Rosario turned around, and Rosario saw that he had a .38 caliber revolver in his right hand. This man was approximately 45 to 50 feet away from Rosario.

The man fired two shots at Rosario, turned around, and proceeded toward Mexico. The bullets did not hit the agent. Rosario took his eyes off the man with the gun as he ducked for cover. As he drew his service revolver and backed up to get better cover, the man turned around again and fired two more shots. Again, Rosario was not hit. When he fired the second set of shots, the man was about 75 feet away from Rosario. Rosario decided not to return fire because he did not want to create an international incident and because, as a rookie with the Border Patrol, he was still on probation.

All three men escaped into Mexico. The entire incident lasted about five minutes. About 90 seconds elapsed from the moment when the man with the pistol turned to fire the first time until the agent lost sight of them in Mexico. Rosario notified his supervisor about the episode, and filed a written report. The report and its supplemental memorandum contained no description of the assailant or his companions. There was no follow-up investigation of this matter. The gun as well as the bullets were never recovered.

Three months later, Agent Rosario was sitting in the Border Patrol locker room. He saw a small stack of photographs that are regularly kept there. Rosario had never looked through the photographs before. The photographs are of men suspected to be thiefs, smugglers, transvestites, and the like. He noticed a picture of a man who resembled the man who had shot at him three months earlier. The photograph was of the defendant. It was taken several months earlier for a prior arrest. Rosario notified his supervisor and a lookout was established by the office. The defendant was arrested several days later at a Brownsville bus station. Rosario later identified the defendant as the man who had fired the shots at him after the defendant was shown alone to Rosario. At all times Rosario was positive that the defendant was the person who fired the weapon at him. He later testified that his assailant's face was indelibly fixed in his memory.

A one-count indictment was filed against the defendant, alleging a forcible assault on a Border Patrol agent in violation of 18 U.S.C. Sec. 111. ¹ At trial, the Government sought to introduce the various photographs that Rosario had looked through in discovering the defendant. When Rosario was questioned by the prosecution about the circumstances of his viewing the photographs, he characterized them as "pictures of various people we take, smugglers, transvestites." ² The defense's objection to this testimony was overruled. Record, vol. 2, at p. 26.

Eight of the nine photographs had words written on them next to the individual's body. For instance, some of the notations read "robbery suspect," "in slammer for murder," "river bandit," "thief," and "transvestite." Similarly, the defendant's photograph had something written on it, but the notations were completely covered up before being presented to the jury. The jury was shown the defendant's photograph, half of which was covered by three pieces of brown paper and tape. The eight other photographs which had notations on them were not covered up, and thus the jury could read the suspected crimes of what defense counsel calls the "rogues' gallery."

Additionally, the lower court permitted testimony by other Border Patrol agents to the effect that the defendant had been apprehended, under an alias, for unspecified offenses at river point 54 in January and April of 1986. This testimony placed the defendant at the scene of the crime both before and after the assault on Agent Rosario. The defendant presented no testimony or other evidence.

During its deliberations the jury submitted one question to the court. The question focused solely on how much weight should be given to Rosario's eyewitness identification of the defendant as the assailant. The court responded that it was for the jury to decide how much weight should be accorded the testimony. The jury returned with a verdict of guilty. The court subsequently imposed a sentence of ten years imprisonment, the maximum provided under the statute.

II. Discussion

The defendant first complains that the lower court committed reversible error in allowing testimony that the defendant had been apprehended by Border Patrol agents at river point 54 before and after the assault on Rosario. The Government offered this evidence to prove identity under Rule 404(b). Fed.R.Evid. 404(b). ³ The defendant contends that the prior apprehensions were dissimilar to and had nothing in common with the modus operandi of the assault. See United States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir.1974). The defendant maintains that the court permitted evidence of the defendant's illegal entry, and that illegal entry is not similar to assaultive behavior. Therefore, the defendant concludes that the evidence was not probative of identity because it did not tend to show that the defendant fired the shots at Rosario.

The trial court's decision to admit character evidence under Rule 404(b) will be upheld unless it is shown that there was an abuse of discretion. United States v. Edwards, 702 F.2d 529, 530 (5th Cir.1983). Evidence of other crimes or bad acts is admissible upon satisfaction of the prerequisites outlined in United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Evidence of extrinsic offenses must meet a two-step test before it is admitted pursuant to Rule 404(b). "First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403." Id. When evidence of extrinsic offenses are offered to prove identity, "[a] much greater degree of similarity between the charged crime and the uncharged crime is required." United States v. Myers, 550 F.2d 1036, 1045 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978).

Because the identification of the defendant is the only real question in the case, and Rosario was the only eyewitness to the assault, it was imperative for the Government to show that the defendant was present at river point 54 at the time of the assault. The evidence was proffered to corroborate the identification of the defendant as the assailant. The showing that he had been there both prior to and subsequent to the assault made it more probable that he was there on March 13, 1986. The evidence was relevant to an issue other than propensity, and therefore the first...