United States v. Alcibiades Garcia Vasquez , 460 F.2d 202 ( 1972 )

KILKENNY, Circuit Judge:

Appellant was indicted, tried and convicted in a jury trial of violating 21 U. S.C. § 174 [conspiracy to smuggle, sell and conceal narcotic drugs] on one indictment and for violations of 18 U.S.C. § 1952 [using a facility in interstate and foreign commerce to distribute proceeds of an unlawful activity, i. e., trafficking in - cocaine] on two counts of a separate indictment. The cases were consolidated for trial.

Inasmuch as reversal is required on one issue completely isolated from the general factual background, we need not here recite a detailed statement of facts. Suffice to say, the record contains substantial evidence in support of appellant’s convictions on each of the indictments.

During the course of the trial, the appellant took the witness stand. On cross-examination, he was asked if he had been convicted in New York City in 1966 of unlawful possession of a narcotic drug. In a bench conference, outside the presence of the jury, appellant’s counsel asserted that a request had previously been made for information relating to prior convictions, but that the United States Attorney had not supplied the information. The United States Attorney conceded that they had been aware of the convieton for “some period of time”, but that he did not know of any request. The record discloses a number of “omnibus” pre-trial hearings, in which this type of information would normally be furnished. After the conference, the court permitted the United States Attorney to pursue the line of questioning. The appellant asserted that the marihuana found in the New York apartment belonged to another. The Assistant United States Attorney insisted that the New York conviction involved “heroin and barbituates”, while appellant countered that it was “just marihuana”.

The material before us on appeal including appellant’s record of conviction in the Supreme Court of the State of New York, demonstrates that he was there convicted of a misdemeanor, rather than a felony. Nevertheless, the trial court held, in the presence of the jury, that appellant “knowingly entered a plea of guilty to a felony.” This ruling was made immediately following the appellant’s testimony that if he had thought the charge was a felony, he would not have entered a plea of guilty. To compound the error, the jury was instructed on the impeaching nature of a felony conviction.

The Assistant United States Attorney had previously practiced law in the state of New York and in the course of the trial, speaking of appellant’s conviction, he assured the court: “It’s a felony under New York law.” When stating that the conviction was for a felony, the judge was obviously relying upon this representation. This he had a right to do. During the course of a heated trial, a judge must of necessity rely upon statements of counsel. The government now concedes that appellant’s New York conviction was a misdemeanor and not a felony.

The prosecuting attorney insisted on the correctness of his position even as late as the conference on instructions, during which period he urged on the court the giving of the customary impeachment instruction in connection with the conviction of a felony. At that time, he again assured the court that he had cheeked with New York and that the violation involved was a felony.

If the New York conviction had been for a felony, it would have been admissible for the purpose of impeachment. Singleton v. United States, 381 F.2d 1 (9th Cir. 1967), cert. denied 389 U.S. 1024, 88 S.Ct. 601, 19 L.Ed.2d 673. However, this circuit does not permit the introduction of a misdemeanor conviction for that purpose. Carlton v. United States, 198 F.2d 795, 800 (9th Cir. 1952). This is true even if such a conviction involves “moral turpitude”. Johnson v. United States, 424 F.2d 537 (9th Cir. 1970).

In a case, such as Johnson, where the prosecutor did not pursue the subject, the evidence of guilt was strong and the judge promptly instructed the jury to lay aside the evidence of the conviction and eliminate it from its consideration, the conviction should not be set aside. However, where, as here, guilt is not so obvious, and the prosecutor wrongly insists on the correctness of his position and then the court gives an instruction calling the jury’s attention to the prior conviction, the prosecutor’s blunder might well tip the scales against a defendant. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1962). On the record before us, we cannot say that the error was harmless. The appellee must now pay the price of a new trial because of the grossly careless statements of an overly zealous prosecutor.

OTHER CONTENTIONS

Other contentions made by appellant, such as: (1) impermissible identification by witnesses due to: (a) insufficient opportunity to observe appellant, (b) identification made under improperly suggestive circumstances, and (c) time lag between visit with appellant and eventual identification procedure; (2) alleged error in the admission in evidence of a false birth certificate, and (3) that the evidence on the conspiracy count was insufficient to support the conviction, are clearly without merit.

The judgment of the lower court is set aside and the cause remanded for a new trial.