United States v. Barcenas, 73-3575.

• Decision Date: 05 August 1974
• Docket Number: No. 73-3575.,73-3575.
• Citation: 498 F.2d 1110
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro Pablo BARCENAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.2d 1110 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Pedro Pablo BARCENAS, Defendant-Appellant.

No. 73-3575.

United States Court of Appeals, Fifth Circuit.

August 5, 1974.

Charles Farrar, Coconut Grove, Fla. (Court-appointed), for defendant-appellant.

Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.

KRAFT, District Judge:

This appeal by Pedro Pablo Barcenas (Barcenas) stems from his conviction, together with Chambless and Suarez, of possession of cocaine with intent to distribute and of distribution of cocaine on July 31, 1972, upon the first two counts of a four-count indictment. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. The last two counts charged only Chambless and one Chiong with like offenses on September 6, 1972.

Chambless entered a guilty plea during the trial. The jury found Barcenas and Suarez guilty on Counts 1 and 2 and Chiong guilty on Counts 3 and 4. Suarez and Chiong filed timely appeals, which resulted in affirmance of the conviction of Suarez and reversal of Chiong's conviction, because of insufficient evidence. United States v. Suarez,¹ 5 Cir. 1973, 487 F.2d 236.

Barcenas' appeal was separately heard by this Court, long after the disposition of the appeals of Suarez and Chiong, because Barcenas, through no fault of his, filed his appeal much later after obtaining the requisite permission.

Appellant's first contention is that he was denied a fair trial, because the government improperly introduced, as appellant views it, evidence of his prior conviction for another crime. Appellant's concept of the situation is not wholly accurate. The prime question is whether what did happen, as herein detailed, was plain error under F.R.Cr.P. 52(b).

A full review of the trial record reveals that there was ample, though not overwhelming, evidence to support Barcenas' conviction. Essentially, the government's case rested on the testimony of special agent Forteza of the Bureau of Narcotics and Dangerous Drugs. Since Barcenas did not testify, his entire defense was based on the testimony of his co-defendant, Chambless, who, admitting his own guilt, absolved Barcenas as his innocent dinner guest. Hence, the pivotal issue was one of credibility between Forteza and Chambless.

In the exculpatory phase of his direct examination Chambless testified that: he had invited Barcenas to dinner two or three days before July 31; he had known Barcenas eight or ten years; Barcenas arrived at Chambless' home with Suarez, while Forteza was there; Chambless did not know Suarez, whom Barcenas brought along for the ride; Barcenas ate, while Suarez watched television; Barcenas was not in the bedroom during the drug sale by Chambless to Forteza; Barcenas had not given him any folder or the like with cocaine in it and, in this respect, Forteza was not telling the truth; Barcenas had nothing to do with the possession or the distribution of the cocaine.

In the prosecutrix' effort to undermine the credibility of Chambless, the following transpired in cross-examination:

"Q. You said that you had invited Barcenas for dinner?

A. Yes.

Q. And you had known him for — did you say eight or ten years?

A. Yes.

Q. Do you know where he was in 1965?"

To the last question, instead of responding "Yes" or "No", the witness replied:

"A. I think he was in jail.

Q. Do you know for what reason?

A. I don\'t know.

Q. Did you see him any time after 1965, up until this time when you invited him for dinner?

A. No.

Q. So you did not see Mr. Barcenas from 1965 until you invited him for dinner that night?

A. I had seen him a few days prior to that day. So, I invited him to come to my house because he had just returned from Los Angeles."

Barcenas' appellate counsel, who did not represent him at the trial, argues, with unwarranted vigor, that the prosecutrix knew Barcenas was in jail in 1965 and that she "deliberately, with intent to prejudice" Barcenas, elicited that fact. Chambless' direct testimony that he knew Barcenas eight or ten years and the implication, that Barcenas was a close friend invited to dinner, entitled the prosecutrix, by proper questions, to elicit, if she could, information which would cast real doubt on the purported closeness of the relationship, by showing that Chambless had not, in fact, seen Barcenas during the period of more than seven years immediately preceding the alleged invitation to dinner. Contrary to the emphatic assertion of appellant's present counsel, the prosecutrix' awareness of Barcenas' earlier imprisonment may just as well have led her to conclude that, despite his testimony and its implication, Chambless had never seen Barcenas between 1965 and July, 1972 and, so, led to a permissible effort to establish that fact by cross-examination. Absent contrary evidence, the prosecutrix is presumed as innocent of intentional impropriety, as was Barcenas when charged with crime.

The prosecutrix' question was not improper. The non-responsive answer of Chambless, Barcenas' witness, created the problem. That answer was not an affirmative statement that Barcenas was in jail, but rather "I think he was in jail."

It is noteworthy that, to the end of that part of the interrogation, quoted supra, Barcenas' trial counsel interposed no objection, voiced no motion to strike, requested no cautionary instruction nor mistrial. Following Chambless' last quoted answer, the prosecutrix continued:

"Q. What was he doing in Los Angeles?"

At that juncture, appellant's trial counsel stated:

"Your Honor, I am going to object and if I may approach the Bench just briefly?"

The trial judge assented and the record then discloses an unreported Bench conference, outside the hearing of the jury and the court reporter. Apparently, whatever transpired there satisfied Barcenas' trial counsel and removed any concern he may have had, since proceedings were then resumed without objection, motion, request or statement by appellant's counsel, and a different and unobjectionable question was asked by the prosecutrix. Barcenas filed no motion for new trial. If the prejudice flowing from the occurrence was as grave as Barcenas' appellate counsel now asserts, he is, indeed, second-guessing Barcenas' trial counsel upon the typewritten record long after the event.

This Court has heretofore stated: "An appellate court will not review actions of omission or commission by a trial court unless the defendant makes known to the court the action which he desires the court to take or his objection to the action taken by the court and the grounds therefor." United States v. Thomas, 5 Cir. 1970, 429 F. 2d 407, 408. Where the trial court has accorded all the relief requested or has had no request for relief, a reversal can only be based on appropriate application of the plain error rule.² We, therefore, must determine whether the trial judge's failure to order a mistrial sua sponte, as a consequence of Chambless' answer, was "plain error affecting substantial rights" of Barcenas.

In determining plain error: "Each case stands upon its own peculiar facts and circumstances as to whether a defendant has been afforded a fair trial. * * * Whenever this Court is of the opinion that a defendant has been denied a fair trial, it must set aside the judgment of...