United States v. Ceniceros

• Decision Date: 04 August 1970
• Docket Number: No. 24362.,24362.
• Citation: 427 F.2d 685
• Parties: UNITED STATES of America, Appellee, v. Pasqual William CENICEROS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

427 F.2d 685 (1970)

UNITED STATES of America, Appellee, v. Pasqual William CENICEROS, Appellant.

No. 24362.

United States Court of Appeals, Ninth Circuit.

June 3, 1970.

Rehearing Denied August 4, 1970.

Michael E. Grodsky (argued), Los Angeles, Cal., David F. Aberson, Sherman Oaks, Cal., for appellant.

Brian J. O'Neil (argued), Asst. U. S. Atty., Wm. M. Byrne, Jr. U. S. Atty., Robt. L. Brosio, Chief, Criminal Division, Los Angeles, Cal., for appellee.

Before HAMLEY and KILKENNY, Circuit Judges, and POWELL, District Judge.^*

HAMLEY, Circuit Judge:

Pasqual William Ceniceros appeals from his conviction, after a jury trial, on all six counts of an indictment charging violations of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a) in connection with two separate heroin transactions on August 6, 1968. Concurrent sentences were imposed.

Defendant's principal point on appeal pertains to certain comments made by Government counsel during his closing argument, and by the trial court in the course of final instructions to the jury, concerning the claim of privilege against self-incrimination made by Hector Campillo, one of defendant's witnesses.

According to the Government's evidence, which the jury apparently believed, Alex Figueroa, a special Government employee, met defendant late one July, 1968 afternoon in an alley in Huntington Park, California. Defendant told Figueroa at that time that he could sell Figueroa a large quantity of heroin. They had a further conversation along this line on the afternoon of August 6, 1968, at a used TV salvage yard in Los Angeles operated by defendant and his brother. Prices were discussed at this time, and it was decided that Figueroa would telephone defendant between 6:00 and 6:30 p. m. to arrange a sale of heroin to Figueroa.

Figueroa then met with Federal Narcotics Agents Krueger and Zablocki at Norm's Restaurant, in Huntington Park. At about 6:00 p. m., Figueroa telerant, holding the receiver in such a manphoned defendant from Norm's Restauner that Agent Zablocki could overhear the conversation. Figueroa was told over the telephone that the heroin was at defendant's TV shop and to "come over and get it." After searching him and his car, the agents gave Figueroa four hundred dollars, and he drove to defendant's place of business and honked his horn. While under surveillance, defendant walked out to Figueroa's automobile, and then the two entered the shop. There Figueroa purchased part of the agreed upon quantity of heroin (in two packages) from defendant. A second delivery of the remainder of the heroin was completed later the same day.

Defendant's defense was that Figueroa purchased the heroin from Hector Campillo, and not from defendant. Defendant testified that Figueroa came to the TV shop about noon on August 6, 1968, and asked if defendant had seen Campillo. According to defendant, Campillo later came to the shop and was there in the evening when Figueroa telephoned the first time. Defendant testified that he put Campillo on the line and left Campillo and Figueroa talking with each other. Defendant testified that Campillo later left a package with defendant, asking him to deliver it to Figueroa when the latter arrived.

Defendant called Campillo as a witness and asked him a series of questions regarding his whereabouts on August 6, 1968, and whether it was not he who had sold the heroin to Figueroa. However, Campillo repeatedly claimed, and the trial court honored, his Fifth Amendment privilege against self-incrimination. At this time Campillo was serving a mandatory ten-year sentence for violating the narcotics laws. During the course of closing argument, Government counsel contended that Campillo's refusal to answer defendant's questions was designed to exculpate the defendant by arousing the jury's suspicions about Campillo. In the course of its instructions at the close of the case, the trial court made the comment quoted in the margin.¹ Counsel for defendant made no objection to the Government's remarks about Campillo during oral argument or to the trial court's comment prior to the return of the verdict.

Defendant contends that the comments of the prosecutor and the trial court with reference to Campillo's exercise of the privilege against self-incrimination must be viewed as "plain error," cognizable under Rule 52(b). In support of this view, he argues, first, that since the trial court honored Campillo's claim of privilege, and therefore had to make an implicit finding regarding the likelihood of its validity, the court was estopped from suggesting to the jury that the claim might not be genuine but merely designed to aid the defendant.

We do not believe the propriety of the trial judge's comment, quoted in note 1, is to be tested by principles analogous to estoppel. Instead, we think the inquiry, both with respect to the trial court's action, and that of the prosecutor, should be concerned with whether the assertion of the Fifth Amendment privilege was thereby improperly impaired, or whether the prosecution thereby gained an unfair advantage at the trial. These considerations are dealt with in defendant's remaining arguments on this branch of the case.

The question of whether a trial court has committed reversible error in honoring a witness' claim of the privilege usually involves one or the other of these circumstances: (1) the trial court countenanced the action of the prosecutor in propounding a series of questions to a Government witness who the prosecutor knew would claim the privilege;² (2) the trial court refused to give a requested instruction or to instruct on its own motion, that no inference prejudicial to the defendant may be drawn from the fact that a witness claimed the privilege against self-incrimination;³ or (3) comments by the trial court, or comments by the prosecutor countenanced by the trial court, invited the jury to infer that if the witness had testified he would have given evidence tending to establish the defendant's guilt.

The first two of these circumstances are not involved in this case. Campillo was not a Government witness and his claim of the privilege against self-incrimination was not made in response to questions propounded by the prosecutor. Defendant did not request the trial court to give an instruction pertaining to Campillo's action in claiming the privilege, and has not claimed that the trial court erred in failing to give such an instruction on its own motion.

The third of these circumstances is involved in this case,...