U.S. v. Williams

• Decision Date: 05 May 1992
• Docket Number: Nos. 90-4135,90-4137,90-4152 and 90-4156,s. 90-4135
• Citation: 963 F.2d 1337
• Parties: 35 Fed. R. Evid. Serv. 705 UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. John Manuel WILLIAMS and Eric Demitries Patt, Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1337

963 F.2d 1337

35 Fed. R. Evid. Serv. 705

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. John Manuel WILLIAMS and Eric Demitries Patt,

Defendants-Appellants/Cross-Appellees.

Nos. 90-4135, 90-4137, 90-4152 and 90-4156.

United States Court of Appeals, Tenth Circuit.

May 5, 1992.

Harry Caston of McKay, Burton & Thurman, Salt Lake City, Utah, for defendant-appellant/cross-appellee John Manuel Williams.

Donald C. Hughes, Jr., Ogden, Utah, for defendant-appellant/cross-appellee Eric Demitries Patt.

Richard D. Parry, Asst. U.S. Atty., Salt Lake City, Utah (Dee Benson, U.S. Atty., with him on the briefs), for plaintiff-appellee/cross-appellant.

Before LOGAN and BRORBY, Circuit Judges, and OWEN, District Judge. ^*

LOGAN, Circuit Judge.

Defendants John M. Williams and Eric D. Patt appeal their conviction following a jury trial for one count of distributing "crack" cocaine and two counts of possession with the intent to distribute "crack" cocaine, in violation of 21 U.S.C. § 841. United States v. Williams, 746 F.Supp. 1076, 1077 (D.Utah 1990).

Defendants both assert that the district court erred in preventing inquiry into the juvenile records of two government witnesses. Williams also contends that the district court abused its discretion when it denied his motion for transportation. The United States cross-appeals, pursuant to 18 U.S.C. § 3742(b), the sentence imposed on both defendants. The government asserts that the trial court's refusal to sentence defendants in accordance with applicable federal law and the federal sentencing guidelines constituted the imposition of a sentence in violation of law.

Defendants were arrested following an investigation by the Weber/Morgan Narcotics Strike Force (Strike Force), a multiagency force created to investigate and prosecute drug crimes. Williams, 746 F.Supp. at 1078. The Strike Force agreement contained no policy or procedure concerning referral to state or federal prosecution. The Strike Force referred defendants' case to the United States Attorney in Salt Lake City, Utah, and a federal grand jury returned an indictment against defendants for distribution of crack cocaine, and possession with intent to distribute an amount in excess of fifty grams of crack cocaine.

At the jury trial, the government presented testimony of police officers who described the arrest. Acting on information that two drug dealers had come into Ogden, Utah and were dealing drugs from a house at 2936 Adams Street, the Strike Force used an informant to make a controlled buy of crack cocaine. The informant entered the house and exchanged a one hundred dollar bill for six rocks of cocaine from defendant Patt. The police obtained a search warrant and as police approached the house, defendants jumped up from a couch and ran to a stairwell in the back of the house and to a door that was nailed shut. Police officers broke through the front door and pursued defendants to the stairwell. A search revealed $700 in cash in Williams' back pocket, including the one hundred dollar bill the informant used in the controlled buy. Officers searched the premises and found approximately eighty-four grams of crack cocaine on a bookshelf, and eight grams of crack cocaine on the floor at the bottom of the stairwell where defendants were apprehended.

The government presented testimony of several witnesses who testified that defendants had used the house before their arrest. The tenants who allowed defendants to use the premises, Troy Rivera and Nicole Rios, also testified that they had agreed to let defendants stay at the house because they were moving out. The defense then presented its case, attempting to show that defendants were not residents of the house and inferring that the cocaine belonged to Rivera and Rios. The jury, however, found defendants guilty.

Before sentencing, in response to the presentence report, defendants moved for a departure from the recommended sentences. Defendants asserted that their constitutional rights of due process were violated when they were referred for federal rather than state prosecution, thereby subjecting them to the higher federal sentencing guidelines and minimum mandatory sentences. The district court, relying on Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), found a due process violation. To remedy this perceived due process problem, the district court imposed sentences "irrespective of the relevant federal minimum mandatory statutes, 21 U.S.C. section 841(b) and also irrespective of the federal sentencing guidelines." Williams, 746 F.Supp. at 1083.

I

A

Defendants contend that the district court erred when it prevented inquiry into government witnesses Tony Rivera's and Nichole Rios' juvenile records. Defendants appear to assert violation of their right to confront witnesses and error under Fed.R.Evid 609(d). ¹ They argue that several aspects of Rios and Rivera's testimony were crucial to the case. The critical testimony was that Rivera and Rios had moved out of the house and defendants then became residents of the house in which defendants and rock cocaine were found, and that Rivera had sold cocaine for defendants. Defendants sought to show that they were not residents of the house nor cocaine dealers, but were coincidentally at the residence of Rivera and Rios at the time of the bust. Thus, defendants argue, it was crucial that they be allowed to impeach Rivera and Rios with evidence of their criminal history.

We note that the jury was made aware of the juvenile record of Rivera during cross examination.

Q. You've got a juvenile record, don't you?

A. Yes, I do.

Q. That include a shooting in the city?

A. No.

III R. 128. Also, when defense counsel asked Rios on cross-examination if she had been convicted of a felony, "like stealing or something," the government objected, the court sustained the objection, and rather than make a proffer, the defense withdrew the question. IV R. 29-30. Moreover, although defendants argue on appeal that some of the witnesses' criminal history included adult adjudications, that evidence was not proffered to the district court. When a defense counsel specifically inquired regarding Rivera's juvenile record, the court instructed counsel, "Don't go into his juvenile problems." III R. 128.

Defendants rely on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), to support their claim that exclusion of cross-examination concerning the two witnesses' juvenile records violated defendants' Sixth Amendment right to confrontation. In Davis the defense attempted to cross-examine the state's key witness about his prior juvenile adjudications and probationary status in order to show possible self-interest or bias of the witness in testifying for the prosecution. The trial court refused to allow evidence concerning the juvenile adjudications, relying on a state statute prohibiting disclosure of juvenile proceedings without consent of the court. The Supreme Court, however, held that the state's interest in keeping juvenile records confidential was outweighed by the criminal defendant's right to confrontation through cross-examination of a prosecution witness.

Davis is distinguishable from the instant case in important respects. Davis did not hold "that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions." Id. at 321, 94 S.Ct. at 1113 (Stewart, J., concurring). In Davis, the witness was on probation and thus susceptible to government influence. See United States v. Decker, 543 F.2d 1102, 1105 (5th Cir.1976), cert. denied, 431 U.S. 906, 97 S.Ct. 1700, 52 L.Ed.2d 390 (1977). In the instant case, there is no evidence in the record that either witness was on probation, and defendants do not argue that as a ground for admitting the evidence. Defendants do imply that the witnesses may have been motivated to lie because they were potential suspects in the case; but the jury was made aware of the witnesses' potential motivation to lie and their potential for bias, because the defense explored those possibilities on cross-examination. Defense counsel on cross-examination also elicited testimony from Rivera concerning a pending aggravated battery charge for which he was incarcerated at the time of trial; thus the jury was aware that Rivera might have been motivated to lie for the government because of pending charges. Davis also differs from the instant case because Davis involved the key witness for the prosecution. See Davis, 415 U.S. at 310, 94 S.Ct. at 1107. In the instant case, many other material witnesses testified for the prosecution, including arresting officers who testified to the arrest and search discussed above.

Finally and perhaps most importantly, in Davis the defense did not have effective means, other than juvenile adjudications and probationary status, of attacking the witnesses' credibility or probing for bias. See id. at 318, 94 S.Ct. at 1111; see also United States v. Ciro, 753 F.2d 248, 249 (2d Cir.), cert. denied, 471 U.S. 1018, 105 S.Ct. 2025, 85 L.Ed.2d 306 (1985). In contrast, in the instant case substantial evidence was introduced to attack the witnesses' credibility. This information included that Rivera was a drug dealer who had sold crack for defendants; that he lied to police concerning his whereabouts; that he was incarcerated at the time of trial on a charge of aggravated burglary; and that he had a juvenile record. The jury heard testimony that Nicole Rios was an unwed, sixteen year-old mother, that she was cheating the welfare system by receiving payments while she lived with Rivera, and that she had lied to police. Defendants' ability to effectively cross-examine witnesses Rivera and Rios was not substantially impaired by the exclusion of evidence of prior crimes.

B

Defendants also assert that the...