United States v. Sanchez
Decision Date | 26 July 1973 |
Docket Number | No. 72-3649.,72-3649. |
Citation | 482 F.2d 5 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Brian Paul SANCHEZ, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.
William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.
Sanchez appeals from his conviction on a jury verdict of guilty, of assaulting, resisting, opposing, impeding and interfering with federal officers while in performance of their official duties, in violation of 18 U.S.C. § 111. We reverse because of the district court's error in permitting the prosecutor to cross-examine appellant in regard to prior criminal activity, and because of the prejudicial character of the prosecutor's argument to the jury.
On September 2, 1972, appellant and a group of companions crossed the international border from Juarez, Mexico, to El Paso, Texas. After declaring his United States citizenship and purchases, he passed through Customs. According to the Government's evidence, appellant then began to interfere with the duties of the United States Customs Inspectors in their attempts to clear the remaining members of the group through Customs. Instead of allowing these people to make their necessary declarations, he continued to supply answers for them, shouting that they were United States citizens, that it was unnecessary to answer the Inspectors' questions and that they had their civil rights. An argument ensued, which shortly thereafter erupted into a full-blown disturbance involving pushing, shoving and abusive and insulting language by appellant and his group.
Prior to the trial, appellant filed a motion requesting that the court instruct the prosecutor not to mention during the trial appellant's prior conviction of homicide with a motor vehicle, then on appeal, and a charge of aggravated assault of a bartender, the trial of which had resulted in a hung jury. At the conclusion of the Government's case, the trial court granted the motion.
In its case in chief the Government produced evidence tending to show an unprovoked assault by appellant on the federal officers. The Government's theory of the incident is that it was a planned demonstration by appellant and his companions to accomplish a confrontation.
Appellant took the stand in his own defense and denied having assaulted anyone. His version of the incident was that he had been assaulted by the officers. He said that he had been shocked by the incident, and further said, "I never had anything like that happen to me." Using this statement as a base, the Assistant United States Attorney cross-examined appellant in regard to it, inquiring whether he meant that he had never been involved in acts of violence resulting from conflicts with other human beings. Appellant repeatedly qualified his answer by replying in effect that nothing similar to the incident at the border had ever occurred to him. Despite the ruling of the trial court prohibiting inquiry into certain prior criminal acts of defendant, the prosecutor then asked Sanchez whether he had been involved in an assault on a bartender and received a negative reply. At this point the trial court overruled an objection by defense counsel and reconsidered and rescinded its prior ruling, on the theory that appellant himself had opened the door to this type of questioning. The prosecution then successfully elicited from appellant admissions in regard to the former criminal proceedings against him in connection with aggravated assault and vehicular homicide. Later the trial court instructed the jury in its charge that evidence or admissions of prior criminal acts was not to be considered as evidence of guilt but was to be used only to impeach or challenge the credibility or believability of the defendant.
Evidence of convictions for felonies and misdemeanors involving moral turpitude is admissible for impeachment of a defendant who elects to testify. Steele v. United States, 5 Cir., 1957, 243 F.2d 712; Daniel v. United States, 5 Cir., 1959, 268 F.2d 849; Reese v. United States, 5 Cir., 1965, 353 F.2d 732; Hamilton v. United States, 5 Cir., 1969, 409 F.2d 928; United States v. Sanders, 5 Cir., 1969, 412 F.2d 854; United States v. Smith, 5 Cir., 1970, 420 F.2d 428; United States v. Garber, 5 Cir. 1972, 471 F.2d 212. Criminal activity, short of a conviction, is also admissible for impeachment purposes where the defendant has put his reputation in issue either through his character witnesses, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), or by false assertions on direct examination in regard to prior unlawful activities, Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). Under this open-door theory it is immaterial that the inquiry pertains to activities of dissimilar offenses. Michelson v. United States, supra.
Applying these principles we find that the appellant's conviction of homicide with a motor vehicle was a conviction for a felony and was therefore properly admitted, notwithstanding the fact that it is presently on appeal. See United States v. Franicevich, 5 Cir., 1973, 471 F.2d 427, 428. We reach a different conclusion, however, in regard to cross-examination of appellant on the charge of aggravated assault. There was no conviction there, only a mistrial. For this evidence to be admissible for impeachment purposes, it is necessary that it come under the open-door rationale.
Appellant's testimony that what happened to him that night at the Customs Station never happened before cannot be characterized as throwing open a subject "which the law has kept closed for his benefit." Michelson v. United States, 335 U.S. 469, 479, 69 S.Ct. 213, 220, 93 L.Ed. 168 (1948). Nothing he said could properly be construed as justifying the cross-examination by the Government which followed relative to the charge of assault of a bartender.1
We disagree with the Government's contention that evidence of appellant's prior criminal acts was admissible on the issue of intent. Generally evidence of prior criminal activity of a similar nature is inadmissible to prove the commission of the crime charged. The rule, however, is subject to many exceptions, such as where intent is an element of the offense charged and the prior similar acts are not too remote from that offense. United States v. Martinez, 5 Cir., 1972, 466 F.2d 679, 683; United States v. Hayes, 5 Cir., 1971, 444 F.2d 472, 474; United States v. McGlamory, 5 Cir., 1971, 441 F.2d 130, 137; United States v. Pittman, 5 Cir., 1971, 439 F.2d 906, 908; United States v. Justice, 5 Cir., 1970, 431 F.2d 30, 32-33; Weiss v. United States, 5 Cir., 1941, 122 F.2d 675, 682. We are not persuaded that the charge against appellant of assault on a bartender is evidence of an intent to forcibly assault, resist, oppose, impede and interfere with a federal officer, and it was reversible error to permit this cross-examination of appellant by the prosecution.
The Assistant United States Attorney's argument was inflammatory and seriously prejudicial. It was replete with racial and political undertones. He repeatedly characterized Sanchez as a liar. He argued to the jury in part as follows:
Further, he argued:
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U.S. v. Beechum, 76-1444
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