United States v. Hernandez

ALVIN B. RUBIN, Circuit Judge. We reverse the conviction of Herminio Hernandez on two counts relating to possession and distribution of cocaine because the prosecuting attorney elicited inadmissible testimony from a government witness, a Drug Enforcement Administration (DEA) special agent, that U.S. Customs had identified Hernandez as a drug smuggler, the district judge overruled an objection to the testimony, and the prosecutor, in her closing argument to the jury, later emphasized this evidence, embellishing it to go even beyond the actual testimony.

Viewing the facts in the light most favorable to the government, the evidence showed that an informant, Gholson, accompanied by special agent Ana Saulnier, who posed as Gholson's wife, met Hernandez by prearrangement in a coffee shop. Hernandez offered to sell them a kilo of cocaine for $52,000. Hernandez, who took the stand, denies that the conversation at the coffee shop involved controlled substances. Later Gholson and agent Saulnier, the ostensible Mrs. Gholson, driving in an automobile, met Hernandez at a service station and followed Hernandez's car to his tire shop. There, in a back room, two packages of cocaine wrapped in newspaper lay atop a television tray table. Hernandez said he did not want to transact business in the presence of a woman, so Saulnier left the room. Gholson then accepted the cocaine. As Gholson and Hernandez were proceeding to the place where payment was to be made, Hernandez was arrested.

Hernandez testified that he had been "set up" by Gholson. The conversation in the coffee shop, he said, concerned leasing a room at his tire shop to Gholson to be used to make pornographic films. He had led Gholson and Saulnier to his shop and had merely shown the room to Gholson, but he had not entered it. Hernandez, by cross-examination and other evidence, attacked Gholson's credibility. Gholson had been charged on numerous occasions with felony charges stemming from his involvement in the pornography business. He also had made his living as an informant for thirteen years, and was paid by the arrest, not the conviction. An officer of the Houston Police Department testified that his department had stopped using Gholson as an informant because they suspected him of making cases against innocent people. Thus, the case boiled down to the jury's acceptance of the version of the facts testified to by Gholson and Saulnier or Hernandez's version. Both sides, in oral argument, correctly referred to the testimony as a "swearing match."

Near the beginning of Saulnier's testimony, the following occurred:

Q. (Prosecutor) Now, Special Agent Saulnier, what first brought the attention of the Drug Enforcement Administration to Herminio Hernandez?

A. We received a referral by the U.S. Customs as Hernandez being a drug smuggler.
Mr. Suarez: Judge, may I object to this testimony as it is pertaining to matters for which this Defendant is not on trial today? It is highly prejudicial, and it is trying this Defendant for crimes other than the one he is accused of today.

The Court: I'm going to overrule the objection.

The government's argument that this testimony was not hearsay and was relevant to show Saulnier's state of mind lacks merit. Saulnier's state of mind was not at issue. The testimony was, therefore, clearly hearsay. The referral was a "statement" other than one made by Saulnier (the declarant) while testifying at trial, offered to prove the truth of the matter asserted (that Hernandez was a drug smuggler). The government's protestation that the evidence was not elicited to prove Hernandez was a drug smuggler, but merely to explain the motivation behind DEA's investigation is unconvincing from both a common sense perspective, and from the government's subsequent use of that testimony. The government, as a last resort, says the testimony was merely background, but it is not permissible to lay such an invidious and prejudicial background.

The prosecuting attorney (who was not the Assistant U.S. Attorney who presented the case on appeal) was not content to leave bad enough alone. In her closing argument, she told the jury:

What kind of case has the government brought to you today? You heard testimony that this case, this defendant, was brought to the attention of the Drug Enforcement Administration through a referral from another law enforcement agency, United States Customs. And what was the nature of that referral? The nature of that referral was that this individual was a known cocaine trafficer. . . .

This, of course, went even beyond Saulnier's testimony, which had characterized Hernandez only as a drug smuggler. The government thus relied on the evidence not as proof of Saulnier's state of mind at the inception of the investigation, but as evidence of Hernandez's guilt. This type of evidence is inadmissible under Fed.R.Evid. 802.

The state of mind of the DEA agent for beginning an investigation of the defendant, was not relevant. "Even under an inclusionary approach, this purpose is inconsistent with the intended scope of the rule and therefore is impermissible." There is simply no authority for the proposition that this type of evidence should be admissible as demonstrating a witness' state of mind. . . .

The judgment of conviction is REVERSED, and the case is REMANDED.