U.S. v. Viera

• Decision Date: 03 June 1987
• Docket Number: No. 86-2161,86-2161
• Citation: 819 F.2d 498
• Parties: 23 Fed. R. Evid. Serv. 400 UNITED STATES of America, Plaintiff-Appellee, v. Anthony VIERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 498

819 F.2d 498

23 Fed. R. Evid. Serv. 400

UNITED STATES of America, Plaintiff-Appellee, v. Anthony VIERA, Defendant-Appellant.

No. 86-2161.

United States Court of Appeals Fifth Circuit.

June 3, 1987.

Paul Nugent, Mike DeGeurin, Houston, Tex., for defendant-appellant.

James C. Sabalos, Henry K. Oncken, U.S. Atty., Susan L. Yarbrough, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before WISDOM, WILLIAMS and HILL, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant Anthony Viera appeals his conviction for violating 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. Sec. 2, for conspiring to distribute cocaine, and for aiding and abetting Ernest King, Jr., in completing the underlying substantive offense. Appellant claims that he was denied a fair trial because (1) the district court restricted his opportunity to cross-examine and impeach King, the government's key witness against him, (2) the prosecutor failed to expose King's inconsistent statements to the jury, and (3) the prosecutor threatened appellant's father and thereby prevented his testimony and subsequently commented before the jury on the father's failure to testify. We find no flaw in the district court's handling of the difficult matter of King's cross-examination, or in the prosecutor's silence regarding King's statements. By contrast, the prosecutor's threat concerning the father's testimony coupled with his comments to the jury on the father's failure to testify violated appellant's right to present witnesses in his defense. Consequently, we reverse appellant's conviction.

I.

In August, 1985, Ernest King, Jr., became the target of a Drug Enforcement Administration (DEA) investigation into the smuggling of cocaine into the United States. On August 13, DEA undercover agents set up a sting operation which led to King meeting with and agreeing to sell the agents one pound of cocaine. King was seen making several phone calls, and he later testified that the calls were placed to appellant, who was his supplier. An hour later, at King's residence, the agents observed appellant Viera arrive in a blue pickup, driven by appellant's father, Gaspar Viera. Appellant entered King's home, appearing to carry nothing. King testified at trial that appellant was carrying cocaine stuffed into his shorts. Half an hour later, King and appellant left the home in King's truck and drove to a parking lot where King had agreed to make the sale to the DEA undercover agents. Appellant remained in the truck while King "sold" nine ounces of cocaine to the agents. King and appellant were both arrested.

Meanwhile, agents keeping King's residence under surveillance noticed that Gaspar Viera remained in the area of King's home after dropping off his son. When the blue pickup approached the King residence a third time after appellant had left, DEA agents stopped the car and searched it, seizing a "beeper" belonging to appellant. King later told the prosecuting attorney that Gaspar Viera knew about and/or was involved in several drug deals, including the one for which King and appellant were convicted.

After he was arrested, appellant denied any knowledge of the cocaine, telling DEA agents that he was just along for the ride. King likewise at that time told the agents that appellant was just along for the ride, and that the cocaine King had "sold" had been at his residence before appellant arrived.

King and appellant were both charged with conspiracy to possess cocaine with intent to distribute and with distributing cocaine. King pleaded guilty, and agreed to testify against appellant as a condition of his plea bargain. King's sentencing was scheduled to occur after he completed testifying at appellant's trial.

Between the time he was arrested along with appellant and the time he testified for the government at appellant's trial, King was arrested on two separate occasions for delivering cocaine to undercover agents. Because King faced state prosecution for these actions, the trial court in the presence of the jury limited cross-examination by appellant's counsel so as not to violate King's Fifth Amendment rights. Appellant objected to the limitation on cross examination.

At the trial, King was the key government witness. He testified that appellant had been his supplier for fifteen or twenty drug transactions and that appellant had brought the cocaine to sell to the DEA agents in this case. King thus contradicted his earlier statements that appellant had been involved in only three or four previous transactions with him, and that in this case appellant "was just along for the ride." Appellant objected to the prosecutor's failure to expose this inconsistency at trial.

At the beginning of the trial, appellant's father, Gaspar Viera, was sworn in as a defense witness. In the presence of King's attorneys, Marjorie Meyers and Candelerio Elizondo, the prosecutor disclosed that King had implicated Gaspar Viera, appellant's father, in several drug transactions. Therefore, asserted the prosecutor, should the elder Viera choose to testify, he would likely be forced either to incriminate himself by admitting involvement in these crimes or to commit perjury by denying his involvement. Either way, the prosecutor said he would seek an indictment of Gaspar Viera before a grand jury convening the next week.

King's attorneys communicated this threat to appellant's attorney, who subsequently decided not to call Gaspar Viera to testify. Appellant's attorney objected to the trial court about the prosecutor's statements, and moved for a mistrial. The court denied the motion for mistrial, but noted that "[i]t certainly was in poor taste and it was improper to make such statements, counsel for the Government, and I don't ever want it to happen again ..." Yet in this course of his closing argument, the prosecutor compounded his action by commenting: "We never heard from dad, did we?" Appellant objected to the reference to Gaspar Viera, but the district court overruled the objection.

The jury found appellant guilty of conspiracy to possess cocaine with intent to distribute and for aiding and abetting King in the commission of the underlying substantive offense. He was sentenced to nine year imprisonment.

II.

Appellant argues that the trial court denied him a fair trial by improperly restricting his ability to cross-examine the government's key witness. Control over the conduct of a trial, including the scope of permissible cross-examination, is squarely within the discretionary powers of the district court, and its rulings will be disturbed on review only if the district court abuses that discretion.

The government's key witness, King, was under indictment in state court for two extraneous drug offenses. His attorneys were present at appellant's trial in order to advise King with regard to his right against self-incrimination. There is no doubt that, with respect to cross-examination relating to those offenses, King had a constitutional right to refuse to answer. Cf. United States v. Kirk, 528 F.2d 1057, 1061 (5th Cir.1976).

The trial court was forced then to balance the witness' Fifth Amendment rights against appellant's Sixth Amendment right to confront the evidence against him. The procedure followed by the trial court was exactly the procedure we suggested in United States v. Demchak, 545 F.2d 1029, 1032 (5th Cir.1977): the judge excused the jury, and heard the desired cross-examination by appellant's counsel. When it transpired that all the questions on cross-examination were covered by the witness' privilege, the judge chose not to allow the cross examination, thereby avoiding the necessity of instructing the jury to ignore the questions and not to infer anything from the witness' failure to answer them. Cf. United States v. Sircovich, 555 F.2d 1301, 1302 (5th Cir.1977) ("Of course, a jury is not allowed to draw any inferences, for or against either the prosecution or the defense, from the decision of a witness to invoke the Fifth Amendment privilege.").

Appellant does not dispute the invocation of the Fifth Amendment right by the government's witness so much as he objects to the fact that the witness was nevertheless allowed to testify for the prosecution. Appellant cites Demchak, supra, for the proposition that the district court ignored "the prohibition against the Government's putting an accomplice on the stand and eliciting information which cannot be adequately cross-examined because of a Fifth Amendment privilege." 545 F.2d at 1031. By doing so, the appellant claims, the district court acted outside its discretionary authority which "comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment." United States v. Garza, 754 F.2d 1202, 1206 (5th Cir.1985), quoting United States v. Mayer, 556 F.2d 245, 250 (5th Cir.1977).

We reject appellant's contention. "The test of whether the trial court abused its discretion in refusing to allow cross-examination for impeaching a witness is 'whether the jury had sufficient information to appraise the bias and motives of the witness.' " United States v. Ray, 731 F.2d 1361, 1364-65 (9th Cir.1984), quoting Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir.1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978). See also United States v. Kimble, 719 F.2d 1253, 1257 (5th Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984), quoting Fountain v. United States, 384 F.2d 624, 628 (5th Cir.1967) ("[T]he relevant question on review is 'whether defendant's inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness' direct testimony.' ").

In this case, appellant was able to disclose to the jury by various means all the...