United States v. Alcibiades Garcia Vasquez

460 F.2d 202 UNITED STATES of America, Appellee, v. Alcibiades Garcia VASQUEZ, Appellant. Nos. 71-2102, 71-2106. United States Court of Appeals, Ninth Circuit. Feb. 25, 1972. As Amended on Denial of Rehearing May 25, 1972. Wallace E. Wolfe (argued), San Diego, Cal., for appellant. Brian E. Michaels, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Acting Chief, Crim. Div., San Diego, Cal., for appellee. Before MERRILL and KILKENNY, Circuit Judges, and LYDICK, District Judge. * KILKENNY, Circuit Judge: 1 Appellant was indicted, tried and convicted in a jury trial of violating 21 U. S.C. Sec. 174 [conspiracy to smuggle, sell and conceal narcotic drugs] on one indictment and for violations of 18 U.S.C. Sec. 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. 2 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 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…

(dissenting) :

I respectfully dissent.

The facts in this case can be briefly stated: Robert and Helen Hernandez ran a wholesale narcotics operation in Tijuana, Mexico from where they shipped cocaine and heroin to distributors in Los Angeles, California. In November, 1968 defendant-appellant Garcia Vasquez supplied these wholesalers with nearly eight pounds of cocaine which was delivered in San Diego, California and transported to Los Angeles for distribution.

The majority would reverse the conviction of Garcia Yasquez because of claimed error arising out of cross-examination of him concerning his prior criminal record and an instruction given by the Court below in that connection.

On cross-examination, the prosecution asked appellant if he had “. . . ever been convicted of a crime ? ” He answered “No”. The prosecution then asked: “Isn’t it a fact, Mr. Garcia, that *205 you were convicted in New York City in 1966 of the unlawful possession of a narcotic drug?” After objection and argument outside the presence of the jury, the question was asked again and appellant explained at length his version of that arrest, which version was ^entirely inconsistent with that found in the…