United States v. Gonzalez

• Decision Date: 14 May 1974
• Docket Number: No. 73-2193.,73-2193.
• Citation: 491 F.2d 1202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enrique Leonel GONZALEZ, Jose Antonio Suarez and Jose Enrique Mendez-Galbart, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

491 F.2d 1202 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Enrique Leonel GONZALEZ, Jose Antonio Suarez and Jose Enrique Mendez-Galbart, Defendants-Appellants.

No. 73-2193.

United States Court of Appeals, Fifth Circuit.

March 27, 1974.

Rehearing and Rehearing Denied May 14, 1974.

Sidney A. Soltz, Miami, Fla., for Mendez-Galbart.

Ronald J. Fath, Miami, Fla., for Gonzalez and Suarez.

Robert W. Rust, U.S. Atty., Harold F. Keefe, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Before GEWIN, THORNBERRY and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied May 14, 1974.

INGRAHAM, Circuit Judge:

Jose Antonio Suarez, Enrique Leonel Gonzalez and Jose Enrique Mendez-Galbart appeal from their convictions for conspiracy to violate and various substantive violations of 21 U.S.C. § 841(a)(1), which proscribes the sale or distribution of heroin and cocaine, and 18 U.S.C. § 2. Suarez and Gonzalez were charged and convicted on all counts of the seven count indictment,¹ and Mendez was charged and convicted on three counts.² The defendants raise numerous points of error,³ all of which we find meritless and therefore affirm.

Defendants first argue that the trial court improperly admitted into evidence testimony of a rebuttal witness regarding alleged prior misconduct for which no conviction had been obtained. During the trial Gonzalez took the stand and testified, in response to questions asked by his counsel on direct examination, that he had never dealt in cocaine or heroin. On cross examination the government asked the defendant whether he had "ever dealt in cocaine or heroin," had "ever negotiated with anyone for the sale of any cocaine or heroin," or had ever "discussed the sale or purchase of heroin with anyone." Gonzalez replied that he had never "dealt in" or "done any business" in cocaine or heroin and had not "talked about" the sale of heroin to anybody. Subsequently, the prosecution called a rebuttal witness, Emilio Garcia, who testified that in 1965 Gonzalez allegedly dealt in marijuana and that in 1973 he had negotiated with Gonzalez regarding an ultimately unconsummated purchase of one-half kilogram of cocaine.

The trial court properly admitted the rebuttal testimony. The Supreme Court in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), recognized that, when the defendant on direct examination initiates an inquiry regarding specific prior conduct other than a criminal conviction, the prosecution may bring forth extrinsic evidence in an attempt to establish prior conduct contrary to the defendant's assertion. In Walder the defendant took the stand and, in response to questions propounded on direct examination, broadly asserted that he had never possessed, sold, handled as a conduit or given without compensation any narcotics to anyone. The Supreme Court held that the trial court properly admitted the rebuttal testimony of two witnesses establishing defendant's dealings in narcotics from evidence obtained in an unlawful search and seizure of defendant's home some years earlier. Likewise, only after the defendant in the case at hand opened the inquiry on direct examination did the trial court admit testimony to specifically rebut defendant's general denial of ever dealing or negotiating for the sale of such proscribed substances.

Relying on United States v. Masino, 275 F.2d 129 (2nd Cir., 1960), and United States v. Sweeney, 262 F.2d 272 (3rd Cir., 1959), the defendants argue that proof of prior acts of misconduct other than a criminal conviction may not be shown by extrinsic evidence such as rebuttal testimony. Instead, they assert that the examiner is limited to the answer that is elicited from the witness on cross examination. See C.McCormick, Evidence, § 42, at 84 (2d Ed.1972); 3A J. Wigmore, Evidence, § 979 (Chadbourn Rev.Ed.1970). But at least one recognized limitation on this principle is that when the inquiry is initiated on direct examination rather than cross examination, the prosecution may bring forth extrinsic evidence to demonstrate the mendacity of the witness' statements. Jackson v. United States, 311 F.2d 686, 690 (5th Cir., 1963); see White v. United States, 317 F.2d 231, 233 (9th Cir., 1963).

Second, the defendants contend that the trial court erroneously admitted evidence of criminal conduct other than the specific sale of narcotics alleged in the indictment. At trial Special Agent William Hudson testified, over defense counsel's objection, that while meeting with defendants Luis Inchausti-Lopez, who plead guilty and testified for the government, and Suarez, Inchausti stated that Suarez had access to three kilos of cocaine and that this cocaine was to be sold to customers in Detroit. Additionally, Agent Hudson related that during a subsequent meeting with Gonzalez in February 1972, Gonzalez mentioned that he had been dealing in narcotics for some time.

The trial court properly admitted Hudson's testimony concerning such closely related activities. In our recent opinion of United States v. Nakaladski, 481 F.2d 289 (5th Cir., 1973), we reiterated the view that "although evidence of criminal conduct not charged in the indictment may not be admitted if it serves solely to show the defendant's bad character or criminal propensities, ... the testimony ... was not admitted for that purpose." Id. at 296. In Nakaladski we held certain testimony relevant and admissible "because it established that appellants had entered into a conspiracy" to engage in extortionate credit transactions. Id. Like the testimony in Nakaladski, Hudson's testimony was not admitted to establish the defendant's propensities to commit the charged crimes, but was properly admissible to establish the existence of a conspiracy to distribute narcotics. See United States v. Restrepo, 417 F.2d 927, 928 (5th Cir., 1969).

Additionally, the trial court, when admitting the evidence concerning transactions not the subject of the indictment, was careful to instruct the jury that it was admissible against all of the defendants only if it concluded that a conspiracy existed. On at least three occasions during the trial, the court suspended the presentation of the case and orally instructed the jury of the reason for admitting the evidence, and no one on the jury indicated that he did not understand. At the conclusion of the case, the court in its general instructions again instructed the jury of the limited use of this evidence. The rights of the defendants were fully protected from any possible prejudice resulting from the admission of this evidence.

Defendants' third contention is that, assuming a conspiracy existed, the principal objective of the conspiracy was achieved by December 30, 1971, when the final sale of one-half kilo of heroin was consummated, and that at this point the conspiracy terminated. Accordingly, the defendants reason that any evidence of discussions and meetings subsequent to this asserted point of termination was improperly admitted as against all the defendants. More specifically, Mendez argues that, since the conspiracy had terminated, the trial court erred in failing to instruct the jury that these subsequent occurrences could only be admitted as against the particular person who committed the act or made a declaration and not against him because his participation terminated on December 30. The defendants further urge that the evidence introduced at trial supports the existence of two conspiracies instead of only one, and thus the admission of evidence relating to the second conspiracy was prejudicial to the participants of the first.

In order to determine the validity of this contention, we turn to the record. The evidence introduced at trial demonstrated that there were two controlled purchases of narcotics in December of 1971. The first purchase was set up by the government informant, Armando Monnar, after he was solicited by Luis Inchausti-Lopez to sell drugs. Inchausti's source of supply apparently was the defendant Gonzalez. The first sale was made at a meeting at the Holiday Inn in Miami when Inchausti and Monnar sold Agent Hudson an initial one-half kilo of cocaine. Monnar testified that immediately prior to the sale defendants Suarez and Raul Villareal-Reyes,⁴ who arrived shortly before the transaction, stepped outside so as not to be noticed. Although it was necessary for Inchausti to leave in order to obtain an additional one-half kilo, after several hours the total purchase of a kilo of cocaine was finally completed. When Hudson left, Suarez and Villareal entered the room, Lopez handed them the money, they counted it, gave Monnar $500 and left.

On December 30, 1971, Monnar contacted Villareal concerning a second purchase of narcotics, this time of heroin, and a transaction was arranged for the following day. On the day of the purchase, Gonzalez, Villareal and Monnar met at a Citgo filling station operated by Gonzalez. Gonzalez told Villareal to get the merchandise, and approximately twenty minutes later Villareal returned with two boxes filled with heroin. Heroin in hand, Monnar and Villareal went to a Howard Johnson's where they met with Agent Peter Scrocca. Because Villareal arrived late, Scrocca refused to purchase the whole kilo, but purchased instead only a half kilo. After this second sale was completed, Villareal and Monnar returned to the Citgo gas station where Monnar explained to Gonzalez why only one-half of the heroin had been sold. At this time defendant Mendez entered the station, walked into the back room, and according to Monnar's testimony, asked "How did the heroin deal come out?" Gonzalez responded that he had the money and, as Monnar testified, allegedly told Gonzalez to retain it "until we straighten the bill with you."

Significantly, after the sale on December 30th, the evidence demonstrates that there were meetings between several of the defendants. Approximately two weeks after the second sale, Villareal,...