United States v. Barcenas, No. 73-3575.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtDYER and MORGAN, Circuit , and KRAFT
Citation498 F.2d 1110
Decision Date05 August 1974
Docket NumberNo. 73-3575.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Pedro Pablo BARCENAS, Defendant-Appellant.

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.


498 F.2d 1111

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

498 F.2d 1112
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,...

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20 practice notes
  • U.S. v. Flores, No. 08-10775.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 29, 2009
    ...reversible error per se." United States v. Veteto, 701 F.2d 136, 139-40 (11th Cir.1983) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir.1974)). Instead, the presumption of innocence is only impaired in cases where some statement or action yields the danger of "a c......
  • Price v. Warren, Civ. No. 12-2238 (RBK)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 2015
    ...63 F.3d 1051, 1058 (11th Cir. 1995) (quoting United States v. Veteto, 701 F.2d 139-40 11th Cir. 1983) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (11th Cir. 1974))); see also United States v. Atencio, 435 F.3d 1222, 1237 (10th Cir. 2006) ("The rule of Estelle does not apply......
  • State v. Finley, No. 94-427
    • United States
    • Montana United States State Supreme Court of Montana
    • April 16, 1996
    ...error to prevent manifest injustice. United States v. Makhlouta (9th Cir.1986), 790 F.2d 1400; United States v. Barcenas (5th Cir.1974), 498 F.2d 1110, cert. denied (1974), 419 U.S. 1036, 95 S.Ct. 521, 42 L.Ed.2d 312; Armstrong v. People (Co.1985), 701 P.2d 17; Russell v. State (1995), 247 ......
  • U.S. v. Beasley, No. 74-1338
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 5, 1975
    ...(5th Cir. 1974). Each case must be judged upon its own individual facts in making the determination. E. g., United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir. 1974). Finding that none of these errors so affected Beasley's substantial rights as to warrant a new trial, we affirm except ......
  • Request a trial to view additional results
20 cases
  • U.S. v. Flores, No. 08-10775.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 29, 2009
    ...reversible error per se." United States v. Veteto, 701 F.2d 136, 139-40 (11th Cir.1983) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir.1974)). Instead, the presumption of innocence is only impaired in cases where some statement or action yields the danger of "a c......
  • Price v. Warren, Civ. No. 12-2238 (RBK)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 25, 2015
    ...63 F.3d 1051, 1058 (11th Cir. 1995) (quoting United States v. Veteto, 701 F.2d 139-40 11th Cir. 1983) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (11th Cir. 1974))); see also United States v. Atencio, 435 F.3d 1222, 1237 (10th Cir. 2006) ("The rule of Estelle does not apply......
  • State v. Finley, No. 94-427
    • United States
    • Montana United States State Supreme Court of Montana
    • April 16, 1996
    ...error to prevent manifest injustice. United States v. Makhlouta (9th Cir.1986), 790 F.2d 1400; United States v. Barcenas (5th Cir.1974), 498 F.2d 1110, cert. denied (1974), 419 U.S. 1036, 95 S.Ct. 521, 42 L.Ed.2d 312; Armstrong v. People (Co.1985), 701 P.2d 17; Russell v. State (1995), 247 ......
  • U.S. v. Beasley, No. 74-1338
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 5, 1975
    ...(5th Cir. 1974). Each case must be judged upon its own individual facts in making the determination. E. g., United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir. 1974). Finding that none of these errors so affected Beasley's substantial rights as to warrant a new trial, we affirm except ......
  • Request a trial to view additional results

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