United States v. Gloria

• Decision Date: 12 June 1974
• Docket Number: No. 73-2044.,73-2044.
• Citation: 494 F.2d 477
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joaquin GLORIA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

494 F.2d 477 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Joaquin GLORIA, Jr., Defendant-Appellant.

No. 73-2044.

United States Court of Appeals, Fifth Circuit.

May 6, 1974.

Rehearing and Rehearing Denied June 12, 1974.

COPYRIGHT MATERIAL OMITTED

Vernon F. Knickerbocker, Jerald L. Abrams, Eagle Pass, Tex., for defendant-appellant.

William Sessions, U. S. Atty., James W. Kerr, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before DYER, MORGAN and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 12, 1974.

RONEY, Circuit Judge:

Joaquin Gloria, Jr. was convicted of conspiring to possess with the intent to distribute and of possessing with the intent to distribute 41 pounds of marijuana in violation of 21 U.S.C.A. § 846 and § 841(a)(1). On appeal, he seeks reversal because of several District Court actions: (1) refusal to grant a continuance of Gloria's trial so it could be held after a co-conspirator had pled guilty, (2) proscribing defense counsel from cross-examining a witness on prior misdemeanors, (3) admission of alleged prejudicial rebuttal testimony concerning defendant's reputation for truth and honesty, (4) refusal to direct a verdict on the ground of insufficient evidence, (5) refusal to allow testimony concerning the favorable results of a polygraph test taken by defendant, and (6) refusal to give a requested charge that proximity to marijuana is not possession. By supplemental briefs, Gloria argues that a motion for new trial and a supplemental motion for new trial should have been granted on the ground of newly discovered evidence and suppression by the Government of favorable evidence. Finding no ground for reversal, we affirm the conviction.

Crispin Santos Mercado, the primary witness for the Government, testified that Gloria approached him on the streets of Eagle Pass, Texas and offered him $200 to make a trip to Batesville, Texas. Lured by the prospect of easy money, Mercado agreed, whereupon he was instructed to leave the keys in his car and "take a walk." After absenting himself for a period of time, Mercado returned to his automobile and began his trip to Batesville. Following Gloria's instructions to utilize a roundabout route, Mercado was stopped by the Border Patrol at Carrizo Springs, Texas. Marijuana was discovered in a suitcase in the car's trunk. Finding himself in a compromising situation, Mercado agreed to help the authorities, whereupon he was allowed to continue his journey but under the close surveillance of customs agents.

At Ted's Place, the Batesville rendezvous, Mercado again met Gloria who instructed him to park the car at the rear of the establishment. Milton George Frey, Jr., a co-defendant, removed the marijuana to another vehicle, conversed with Gloria, and then left in the direction of San Antonio, only to be arrested shortly after his departure. At Ted's Place, Gloria completed the $200 payoff to Mercado. Customs agents arrested both of them.

Each of the three participants was indicted on two counts: conspiracy and possession. Mercado and Frey pled guilty to the conspiracy count and the possession count was dropped as to them. Gloria proceeded to trial and was convicted on both counts.

1. Continuance

Gloria alleges that the District Court's denial of his motion for continuance constituted an abuse of discretion and a violation of his Sixth Amendment right to compulsory process for obtaining witnesses. On the day of trial co-defendant Frey was to plead guilty to the conspiracy count. Gloria planned to use Frey as a defense witness. The scheduled plea was postponed for two days, however, due to a death in Frey's family. Gloria moved for a continuance arguing that: Frey was a material witness who, after pleading guilty, could take the stand and exculpate Gloria by denying Gloria's involvement in the criminal activity; the delay was not sought as a dilatory tactic; and the postponement of Frey's plea came as a complete surprise to Gloria.

Gloria's contentions are unpersuasive. He was not denied his right to compulsory process of witnesses because he subpoenaed Frey who appeared at the trial. Frey, however, exercised his Fifth Amendment right against self-incrimination, as he was entitled to do. Even if Frey had entered his plea prior to Gloria's trial, he could still maintain his right against self-incrimination and refuse to testify in Gloria's behalf. His guilty plea would dissolve that right only as to the offense to which he pled guilty. See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L. Ed.2d 418 (1969). Since he ultimately pled guilty only to the conspiracy count, prosecution on the possession count remained a possibility. Postponing Gloria's trial until that plea was entered would not have produced exonerating testimony for Gloria. Frey's continued invocation of the Fifth Amendment at the subsequent motion for a new trial, after his plea to the conspiracy charge, further highlighted the futility of postponing Gloria's trial. We find no abuse of discretion nor manifest injustice in the denial of a continuance.

2. Prior Misdemeanor Impeachment Evidence

The Government's chief witness was Mercado, the co-defendant who delivered the marijuana and whose identification and testimony directly implicated Gloria in the conspiracy. Mercado had been previously convicted on two misdemeanor counts of assisting aliens to illegally enter the United States in violation of 8 U.S.C.A. § 1325. Gloria wanted to use those prior convictions to impeach Mercado's testimony, but was prevented from doing so when the District Court granted the Government's motion in limine to prohibit all references to Mercado's prior non-felony convictions or to convictions of crimes which did not involve moral turpitude.

This Court follows the usual rule that felony convictions and misdemeanors involving moral turpitude may be used to impeach the credibility of a witness. Roberson v. United States, 249 F. 2d 737 (5th Cir. 1957), cert. denied, 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715 (1958). See United States v. Sanchez, 482 F.2d 5 (5th Cir. 1973); United States v. Smith, 420 F.2d 428 (5th Cir. 1970); Pinkney v. United States, 380 F.2d 882 (5th Cir. 1967), cert. denied, 390 U.S. 908, 88 S.Ct. 831, 19 L.Ed.2d 876 (1968); 2 Wharton's Criminal Evidence § 475 (13th ed. 1972); 3A Wigmore, Evidence 980, 986, 987 (Chadbourne rev. 1970); McCormick, Evidence § 43 (1954).

The penalty for a conviction under 8 U.S.C.A. § 1325 is limited to six months confinement and a $500 fine making the violation a misdemeanor under the laws of the United States. 18 U.S.C.A. § 1. To be used as impeachment evidence, therefore, the crime must involve moral turpitude. "Moral turpitude" has been defined by this Court as

"An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

United States v. Smith, 420 F.2d 428, 431 (5th Cir. 1970), citing Black's Law Dictionary 1160 (Rev. 4th ed. 1957). Generally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude. See Rules of Evidence for United States Courts and Magistrates, Rule 609. Convictions of 8 U.S.C.A. § 1325 do not fall within these classifications, however. We hold the mere assistance of aliens in their attempt to illegally enter the United States is not such a crime of moral turpitude or fraudulent and dishonest conduct to allow its introduction as impeachment evidence against Mercado because proof of its commission is not relevant to show a lack of truthfulness on the part of the witness. See 3A Wigmore, Evidence § 926 (Chadbourne rev. 1970).

Gloria's reliance on United States v. Morgan, 155 U.S.App.D.C. 172, 476 F.2d 928 (1973), is misplaced. The witness in Morgan had been convicted of making a false report to the police. It was this witness's uncorroborated report which led to Morgan's arrest and conviction. Clearly the prior conviction for false reporting related directly to the witness's credibility in his report against Morgan. Mercado's prior conviction, however, had no such application.

Finally, the scope of cross-examination is a matter subject to the discretion of the trial judge. Roberson v. United States, 249 F.2d 737 (5th Cir. 1957), cert. denied, 356 U.S. 919, 78 S. Ct. 704, 2 L.Ed.2d 715 (1958). In light of Mercado's credibility impeachment flowing from his conspiracy plea in the case at bar, there was no abuse of discretion in not allowing further cross-examination by admitting into evidence his prior misdemeanor convictions, which did not involve moral turpitude.

3. Government Rebuttal Testimony

After Gloria took the stand to testify on his own behalf, the Government introduced rebuttal testimony concerning his reputation for truth and veracity. Three customs agents testified that they knew of Gloria's reputation in the community and that it was bad.

Gloria complains of the manner in which the Government attempted to qualify one witness, Agent Riggs, and challenges his qualifications ultimately established. Agent Riggs delineated the investigative jurisdiction of the Bureau of Customs to include marijuana and narcotic import violations. The District Court intervened, upheld Gloria's objection, and instructed the jury to disregard the testimony. The curative instruction was sufficient to preclude any prejudicial error in that testimony.

Agent Riggs' rebuttal testimony, based on his two years residence in Eagle Pass, Texas, Gloria's home town, is not rendered inadmissible because Riggs spent the nine months preceding trial in Del Rio, Texas, a community some 40 miles from Eagle Pass. During the two years he was in Eagle Pass, Riggs was familiar with Gloria's reputation for truth and veracity in that community and so testified.

Gloria also complains of overwhelming...