United States v. Jesus Ortiz , 553 F.2d 782 ( 1977 )

OWEN, District Judge.

Appellant Jesus Ortiz has been found guilty by a jury in the District of Connecticut of distributing cocaine, possessing cocaine with intent to distribute it, and conspiring to distribute.¹ He was sentenced to concurrent seven year terms on each count to be followed by three years on special parole.

At the trial, the government proved that on February 9, 1976, Rafael Valentin, an undercover Connecticut State Trooper, and Luis Lopez, a confidential informant, went to an apartment building at 15 Cabot Street in Hartford to attempt to purchase a quarter ounce of cocaine from one “Frankie” Melendez, a brother of Ortiz’ wife. There they in fact met Frankie’s brother, “Kiki” Melendez, who, after ascertaining that they wanted to buy cocaine from Frankie, told them that he, Kiki, only had “bags” of cocaine and, further, that he would deal only with Lopez, but would not sell directly to Valentin.

A short while later that day, while Lopez and Valentin were seated in a car in front of a neighborhood bar, Kiki came up and reiterated that he would sell “bags” of cocaine to Lopez, but would not deal with Valentin. Kiki finally instructed Lopez to come alone to 15 Cabot Street² if he wanted the cocaine.

The next day, February 10, 1976, Valentin and Lopez returned to 15 Cabot Street. Lopez went upstairs alone, leaving Valentin in the car. Lopez met Kiki and agreed on a price. He went downstairs to get the money from Valentin and reentered the apartment building. Kiki then led Lopez to appellant Ortiz’ third floor apartment. Ortiz was waiting for them. Ortiz asked an unidentified woman to bring him the cocaine. She returned with an aspirin tin which she handed to Ortiz. Ortiz opened the tin and counted out 15 tinfoil packets, which he handed to Kiki. After recounting them, Kiki handed the packets to Lopez. Lopez then handed Kiki the agreed-upon $180, which Kiki then handed to Ortiz, who counted it. Lopez then left and rejoined Valentin and surrendered the 15 bags of cocaine to him.

Appellant Ortiz raises two issues on appeal — the first, that it was reversible error to permit undercover officer Valentin and informer Lopez to testify as to the conversations they had had the day before the actual sale with Ortiz’ brother-in-law Kiki. Appellant claims that these conversations were pre-conspiracy hearsay. The totality of the evidence, however, reasonably supports the conclusion that the conspiracy between Ortiz and his brother-in-law to sell cocaine to any trusted buyer was already in existence the day before the actual sale.³

Appellant Ortiz’ second claim of reversible error is that the court abused its discretion in ruling that the government might use for impeachment purposes his 1972 conviction for two separate heroin sales entered upon a plea of guilty. This ruling, appellant asserts, caused him to forego taking the stand and testifying on his own behalf. Rule 609(a) of the Fed.R. Evid.⁴ provides in pertinent part:

“For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant.”

This rule gives broad discretion to the trial judge and its exercise should not be disturbed absent a clear showing of abuse. In the exercise of this discretion, many factors are relevant. Prime among them is whether the crime, by its nature, is probative of a lack of veracity. In United States v. DiLorenzo, 429 F.2d 216 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120, (1971), we held that a prior conviction involving a crime which “reflect[s] on honesty and integrity and thereby on credibility . . . ” might be used to impeach a witness. Here, the District Judge in his discretion was entitled to recognize that a narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie. From this he could rationally conclude that such activity in a witness’ past is probative on the issue of credibility.

United States v. Puco, 453 F.2d 539 (2d Cir. 1971) is distinguishable. In Puco, this court held that it was an abuse of discretion for the trial judge to permit the use of a 21 year old narcotics conviction for impeachment purposes.⁵ While we there stated that, “a narcotics conviction has little necessary bearing on the veracity of the accused as a witness,” id. at 543, the age of Puco’s prior conviction was more determinative in reaching our ultimate decision. The court expressly cautioned that, “[w]e do not hold that a prior narcotics conviction can never be used to impeach a defendant.” Id. at 543 n.10.⁶ Indeed, we subsequently held in United States v. Christophe, 470 F.2d 865, 870 (2d Cir. 1972), cert. denied, 411 U.S. 964, 93 S.Ct. 2140, 36 L.Ed.2d 684 (1973), that a trial judge was within his discretion (citing Puco) in permitting the use of a narcotics conviction, where the defendant was not released from prison thereon until eight years prior to trial.

Further, we note here the trial judge’s opportunity for full consideration of all the factors before exercising his discretion in ruling that appellant Ortiz’ four year old narcotics selling conviction might be used to impeach. The court’s final ruling was made after a conference in chambers and after testimony had been given by appellant’s wife and one Arnold Samuel Worthen. Mrs. Ortiz was her husband’s alibi, and testified in essence that there could not have been any transaction of the nature Lopez had described. She said she had been in the apartment at all times in the month of February 1976 when her husband was there; that her brother Kiki had not been there that month, being persona non grata for breaking their television set while drunk, and the Ortizes had called the police; that she had never seen Lopez anywhere before the trial, and that he had never been in the apartment. Parts of the foregoing were supported by Worthen’s testimony. Ortiz at no time made a showing as to what he proposed to testify to which had not already been testified to by them. The court was entitled to such a showing since Lopez, the government’s only eyewitness, had an extensive criminal record, which was brought out by the prosecution and then thoroughly exploited on cross-examination. Lopez was even impeached on cross-examination on the basis of arrests. To have allowed appellant, if he chose to take the stand, to appear “pristine” would have been unfair and misleading to the jury. When a “case [would be] narrowed to the credibility of two persons — the accused and his accuser— ... in those circumstances there [is] greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses [is] to be believed.” Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 941 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). Cf. United States v. Jackson, 405 F.Supp. 938, 942 (E.D.N.Y. 1975).

Under all the circumstances present, the District Court did not abuse its discretion. The judgment of conviction is affirmed.

1 . Title 21, United States Code, Sections 841(a)(1) and 846.

2 . Appellant Ortiz lived in that apartment building. While neither of the Melendez brothers did, their mother also lived in the building and they were frequently on the premises.

3 . In any event, Kiki’s remarks would have been admissible as proof of Lopez’ state of mind, showing why he entered Ortiz’ apartment the next day without Trooper Valentin.

4 . Rule 609(a) is essentially the same as the rule in this Circuit prior to its enactment, see 3 Weinstein's Evidence, 11609[03] at 609 n.2.

5 . This holding is now codified in Rule 609(b).

6 . The fact that the prior conviction is for the same offense requires particularly careful consideration of all the factors by the trial judge before permitting its use, but does not mandate its exclusion, see Puco, supra, at 542.