United States v. Perez, 73-1436 and 73-1437.

• Decision Date: 18 March 1974
• Docket Number: No. 73-1436 and 73-1437.,73-1436 and 73-1437.
• Citation: 493 F.2d 1339
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose PEREZ and Vivian Perez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

493 F.2d 1339 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Jose PEREZ and Vivian Perez, Defendants-Appellants.

Nos. 73-1436 and 73-1437.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted November 14, 1973.

Decided March 18, 1974.

Charles O. Thomas, Kansas City, Kan., for defendants-appellants.

Monti L. Belot, III, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., Richard L. Meyer and Thomas A. Hamill, Asst. U. S. Attys., Topeka, Kan., on the brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.

Jose and Vivian Perez appeal their convictions for distributing or dispensing heroin and for possession of heroin, a controlled Schedule I substance. 21 U.S.C.A. §§ 841(a)(1) and 844. Vivian was convicted on count 1 for distributing or dispensing a quantity of heroin; Jose was convicted on count 2 for distributing or dispensing a separate quantity of heroin; and they were jointly convicted of possession of other heroin on count 3.¹ While we agree with two claims of error asserted by the defendants, on this record we believe those errors were harmless and affirm.

These cases developed from a lead to Jose and Vivian Perez by an unnamed informant. The government claimed the privilege of protecting the identity of the informer and he did not testify at the trial. His name and whereabouts were the subject of cross-examination, but the trial court sustained objections based on the claim of privilege. No issue is directly raised on appeal based on the failure to have the informer present at the trial. There are serious arguments made, however, that the right of confrontation and the hearsay rule were violated by the admission of testimony of government witnesses as to statements the informer made to them. These contentions are discussed later.

The government proof tended to establish these facts. On October 2, 1972, Scott, an undercover agent of the Bureau of Narcotics and Dangerous Drugs, made contact through the informant with Jose and Vivian. During conversation with Scott, Vivian explained that they would provide Scott with drugs and he then would repay them as he obtained money for selling the drugs. Vivian said that if he was honest with them he could make a lot of money for himself.

Arrangements were made for purchase of some heroin and later that day Vivian delivered a tinfoil packet of heroin to Agent Scott at a Safeway parking lot in Kansas City, Kansas. Vivian was not paid at that time but told Scott that the price for the heroin was $450.

The next day Scott made further contact with Jose. Arrangements were later made for a meeting with Jose at the Kansas University Medical Center. This contact occurred on October 4 and Jose there delivered another package of heroin to Scott. This transaction involved approximately 22 grams of heroin which was of a much purer nature than that normally found on "the street." Scott testified that this material would probably make 800 dosage units at the street level, worth about $8,000 currently in Kansas City.

On October 7 a search pursuant to a warrant was carried out at the residence where Jose and Vivian were living. The search uncovered approximately 3 grams of heroin. On the back porch adjoining the house approximately 13.6 grams of lactose were found, a cutting substance used with heroin. A set of scales was seized and a quantity of money was found in a lady's coat, including $380 of the $450 in bills paid to Jose on October 4.

The principal defense was entrapment. Jose testified he came to Kansas City with his wife to try to break the heroin habit and find a job. In Ft. Worth, he could not break the habit because when he would come out the door of the clinic, there would be pushers waiting to sell heroin. When he came to Kansas City he joined the methadone center at Kansas University Medical Center and got a maintenance job at the Kansas University.

While Jose and Vivian were attending this clinic Jose was given heroin by Mike James. Jose said he had come on James in a restroom where he was preparing to inject himself with heroin. James offered him heroin, which he accepted. Both Jose and Vivian became readdicted.

Dr. McKneely of the Kansas University Medical Center staff verified that Jose and Vivian had been patients at the clinic. He said his records showed Jose had begun attending the clinic in February, 1972, and had attended at various times into the summer. He also said they both returned to the clinic in October.

Jose testified that he did not pay James for the first heroin he received at the clinic. He said he subsequently made some purchases of it from James for about a month until the addiction was pretty well advanced. When Jose went to James' home on one occasion, James said his supply had run out and asked if Jose knew where to buy heroin, perhaps in Texas. James said that since his supply "had been busted, did I want to go and buy some and then I could get what I needed." Jose accepted this suggestion and brought some heroin for James, who gave Jose a part of it for his personal use. The money for the heroin from Texas was supplied by James, who had been "pushing before." Jose said he made several other trips for James to Texas and that on each occasion James gave him the money.

Jose testified that finally they had no money and that he and James were both ill and desperate. James asked if Jose could get heroin in Texas on credit which Jose did. He said he brought it to Kansas and gave it to James. James then called Jose and said he had the money to pay for the heroin purchased on credit, and that was the day "he introduced me to Agent Scott." Jose said James persuaded him to take the heroin to Agent Scott and that was why he took the heroin to him, "so that we could then pay for the credit owed in Texas."

Agent Sawyer of the Bureau testified that the informer had been arrested on September 28, 1972, and immediately was employed as a government informer. The informer was a drug user and a pusher. He entered a plea to the charge against him and received probation. As noted, the first contact arranged by the informer for Scott to see Vivian and Jose was on October 2, 1972. Jose said this occurred at James' home and that Scott, Mike James, James' wife and Vivian were there also.

Jose said that he brought the heroin from Texas because his habit was "pretty heavy" and his wife was also addicted against. He testified that the 3 grams of heroin found in their home were for his personal use. (As stated the jury found the defendants guilty of simple possession of the 3 grams of heroin and did not find them guilty of possession with intent to distribute it). They were using 4 or 5 grams of heroin daily. Jose also denied that he had ever gotten heroin for any one except James and Scott in his life. And he testified he was not selling heroin to obtain the money to buy heroin with, and was working sometimes during this period.

Vivian did not testify. Jose and McKneely were the only defense witnesses. Except as the testimony of Jose conflicted with it, the government proof was generally undenied.

First, defendants argue that the trial court erred by admitting hearsay testimony through Agent Scott. On redirect Scott was asked to describe the relationship between the defendants and the informant. The trial court overruled a hearsay objection to Scott's testimony repeating statements by the informer. The court stated that a lot of other evidence about the informant had been admitted and that he thought that Vivian's counsel had opened up the subject.

Agent Scott was then permitted to testify that the informant stated to him that he had occupied a position very similar to that which Scott later occupied; that ". . . . the defendants had been giving drugs to the informant to sell for them just in the same manner in which I began to take drugs for them, to sell for them." Complaint is also made that other similar hearsay was erroneously admitted as to statements by the informant describing actions by the defendants.

We must agree that the admission of such testimony was error. It is true that defense counsel cross-examined in some particulars about the informer and his relationship with Agent Scott. However, we cannot agree that the defendants had opened up the subject of proof by whatever means, and that they had waived all objections based on their right to confrontation and the hearsay rule.²

The testimony went to the jury on the question of guilt and involved extra-judicial statements by the informer who did not confront the defendants in court, and was not subject to cross-examination or under oath. It was inadmissible. Dennis v. United States, 302 F.2d 5, 10 (10th Cir.); La Placa v. United States, 354 F.2d 56, 59 (1st Cir.), cert. denied, 383 U.S. 927, 86 S.Ct. 932, 15 L.Ed.2d 846; see United States v. Brown, 411 F.2d 1134, 1138 (10th Cir.). And since these basic rights were infringed, the Sixth Amendment guaranty of confrontation was denied. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297; Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed. 2d 476; Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193.³

For these reasons we must agree that admission of the informer's statements was error in these circumstances. However, for reasons detailed later, we are satisfied that on this record the constitutional error was harmless.

Secondly appellants argue that prejudicial and improper closing argument was made by government counsel and that the trial court erred in not granting their motions for a mistrial.

In closing government counsel argued that this was one of the most flagrant violations of federal law in drug trafficking that he had seen in the city in recent years. He further asserted that the heroin sold to the agent was the highest quality...