U.S. v. Vargas
| Decision Date | 07 June 1991 |
| Docket Number | Nos. 89-10642,90-10042,90-10006,90-10069 and 90-10071,90-10001,90-10000,90-10010,90-10066,s. 89-10642 |
| Citation | 933 F.2d 701 |
| Parties | 33 Fed. R. Evid. Serv. 1219 UNITED STATES of America, Plaintiff-Appellee, v. Fidel Barragan VARGAS, Joel Victor Angulo, Felizardo Perez Casarez, Octavio Galvez Angulo, and Jaime Limon, Defendants-Appellants. UNITED STATES of America, Cross-Appellant, v. Fidel Barragan VARGAS, Joel Victor Angulo, Octavio Galvez Angulo, and Jaime Limon, Cross-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas E. Flynn, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
John F. Garland, Fresno, Cal., for defendant-appellant, Fidel Barragan Vargas.
Michael Berdinella, Fresno, Cal., for defendant-appellant, Joel Victor Angulo.
Victor M. Chavez, Asst Federal Public Defender, Fresno, Cal., for defendant-appellant, Felizardo Perez Casarez.
Daniel L. Harralson, Harralson & Dyer, Fresno, Cal., for defendant-appellant, Octavio Galvez Angulo.
W. Scott Quinlan, Fresno, Cal., for defendant-appellant, Jaime Limon.
Appeal from the United States District Court for the Eastern District of California.
Before SCHROEDER, PREGERSON and T.G. NELSON, Circuit Judges.
Five defendants were jointly tried on a two-count indictment and convicted of conspiracy to distribute cocaine and heroin and possession with intent to distribute. They challenge their convictions. In four of the five cases, the government cross-appeals, arguing that the district court misapplied the Sentencing Guidelines by failing to enhance the defendants' offense levels for a co-defendant's possession of a firearm. For the reasons explained below, we reverse the convictions and remand for a new trial.
On February 16, 1989, at the end of an undercover investigation, local police raided a house at 556 S. Sierra Vista in Fresno, California. Fidel Vargas was arrested in the front yard. The other four defendants fled and were arrested in the yards of neighboring residences. Perez-Casarez was arrested in the yard of the house immediately to the north of the target house, attempting to hide a gun inside a bale of hay. In the same yard, about forty to fifty feet away, police found a plastic bag containing approximately ten ounces of heroin and five kilograms of cocaine.
The defendants were jointly charged, tried, and convicted for possession of the drugs found in the neighboring yard and conspiracy to distribute them. The primary witnesses for the prosecution were Detective Herman Peterson of the Fresno Police Department, who posed as the buyer, and Arnulfo Ramirez, a paid informant. Another paid informant, Jesus Perez, intitiated the contact with the defendants but did not testify. The only defendant to testify was Fidel Vargas, the first defendant to be contacted by the government agents. Vargas argued that he was entrapped into arranging the contemplated drug transaction.
Detective Peterson testified about a series of conversations whose participants included, in various combinations, Peterson, the informants, and defendants Vargas, Octavio Angulo, and Joel Angulo. Peterson's testimony directly implicated these three defendants in a conspiracy to distribute drugs. According to Peterson's testimony, two additional men were scheduled to bring the drugs to the Sierra Vista house, where the transaction would occur. Peterson arranged to wait outside in the car while Ramirez went inside to verify that the drugs had arrived. Peterson was not expected to enter the house with the money until after Ramirez left the house and confirmed the presence of the drugs. Peterson's real plan, which he followed, was to signal surveilling officers to move in for an arrest as soon as Ramirez confirmed that the drugs were in the house.
To connect the defendants with the drugs found in the neighbor's yard, and to connect Limon and Perez-Casarez with the conspiracy, the prosecution relied primarily on the testimony of Arnulfo Ramirez. The defendants argue that their sixth amendment rights of confrontation and cross-examination were violated by the unusual and restrictive procedures the district court ordered for handling Ramirez's testimony before the jury.
At the time of trial, Ramirez was in the custody of the Los Angeles County Sheriff, awaiting trial on a murder charge. Ramirez's attorney in that case refused to let federal prosecutors speak with Ramirez when they initially brought him to Fresno. On the first day of trial, outside the jury's presence, the prosecutor announced to the court that he was afraid Ramirez might refuse to testify on fifth amendment grounds. The court made it clear that defense attorneys would not be permitted to question Ramirez about the events that led to the pending state murder charge. The defendants do not challenge that ruling. In addition, the court granted Ramirez immunity and appointed a local attorney to advise him. Although Ramirez stated that he was willing to testify before a jury, the court apparently was concerned that Ramirez might nevertheless refuse to answer questions before the jury. 1
The court devised the following procedure. It directed the attorneys to question Ramirez under oath but outside the jury's presence. The prosecutor then conducted the direct examination and the defense attorneys cross-examined. A court reporter prepared a transcript and edited out all objections, arguments to the court, and the court's rulings and responses. The next day, the witness Ramirez took the stand with the jury present. 2 The court and the attorneys had a copy of the edited transcript of the testimony that Ramirez gave outside the jury's presence, but Ramirez had no transcript. The court required the attorneys to conduct their examination before the jury by reading the questions from the edited transcript. No other questions were permitted. If the court deemed that Ramirez's answer before the jury was inconsistent with the answer he gave the day before, the court then read to the jury, from the transcript, Ramirez's earlier answer. The attorneys were then directed to proceed to the next question in the transcript, without exploring the discrepancies between Ramirez's differing answers. This procedure was followed for both the direct and cross-examination. The court advised the attorneys of this procedure in advance and cautioned them in the first session, with the jury absent, that they must ask every question that they wanted answered later before the jury. 3 The defendants objected to this procedure from the beginning, and after Ramirez testified freely out of the jury's presence, they renewed their objection to the requirement that questions during cross-examination before the jury must be drawn entirely from the transcript of Ramirez's testimony given outside the jury's presence.
The trial judge has discretion to impose reasonable limits on cross-examination, and this court finds error only when that discretion has been abused. United States v. Jackson, 882 F.2d 1444, 1446 (9th Cir.1989). When there is an abuse of discretion, there must be an inquiry into whether the error was harmless. When there is no constitutional violation, the error does not require reversal if it is more probable than not that it did not contribute to the verdict. See id. at 1447.
Whether limitations on cross-examination are so severe as to amount to a violation of the confrontation clause is a question of law reviewed de novo. United States v. Jenkins, 884 F.2d 433, 435 (9th Cir.), cert. denied --- U.S. ----, 110 S.Ct. 568, 107 L.Ed.2d 562 (1989). A violation of the confrontation clause, including a violation of the defendant's right to cross-examine and impeach a witness, is subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). The conviction must be reversed unless this court is persuaded beyond a reasonable doubt that the error was harmless.
The admission into evidence of out-of-court statements, offered by the prosecution to prove that they are true, can also violate the Federal Rules of Evidence and the confrontation clause. The trial court's decision to admit such out-of-court statements is reviewed de novo. Violations of evidentiary rules are subject to harmless error analysis under the more-probable-than-not standard, unless they are also violations of the confrontation clause, in which case the conviction must be reversed unless this court is persuaded beyond a reasonable doubt that the error was harmless.
Evaluation of Ramirez's testimony and defendants' opportunity to cross-examine him should focus on the proceedings that took place with the jury present. When the court read from the transcript of the questioning that occurred outside the jury's presence the day before, it was submitting prior sworn testimony for the jury's consideration. 4
The judge explained to the attorneys that he would read Ramirez's prior inconsistent statements "as impeachment," and the government's briefs also refer to the prior testimony as impeachment. The judge read Ramirez's prior answers to the jury immediately after Ramirez gave an answer that the judge deemed inconsistent. Because the jury was never instructed to consider this prior testimony solely as impeachment, it must be regarded as substantive evidence.
Testimony given in prior judicial proceedings may, despite the rule against hearsay, qualify as admissible evidence and satisfy the confrontation clause. When witnesses are unavailable, their prior testimony, if given under oath and subject to cross-examination at the time it was given, is admissible as an exception to the hearsay rule. Fed.R.Evid. 804(b)(1). It may also be admitted without violating the confrontation clause. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (...
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