Memorandum — Texeira v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1468

RENE TEXEIRA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioners contend that the trial court improperly

restricted the cross-examination of a key government

witness. Petitioner Rene Texeira also contends that

the court’s failure to rule on his proposed jury instruc-

tions before his closing argument was reversible error

under Rule 30, Fed. R. Crim. P.

After a jury trial in the United States District

Court for the Southern District of New York, petitioners

were convicted of conspiracy to traffic in heroin,

in violation of 21 U.S.C. (1964 ed.) 173, 174.

Petitioners Rene Texeira and Justino Texeira were

sentenced to twenty years’ imprisonment, and peti-

tioner Francis Texeira was sentenced to fifteen years’

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imprisonment. The court of appeals affirmed without

opinion,

Pamela Ramirez testified that in 1968. she began

selling heroin for her uncles, petitioners Rene and

Justino Texeira (Tr. 16-20). In 1969, Ramirez and others

began helping petitioners “bag up” heroin. This

operation involved first diluting heroin and then

putting five dollars worth of the mixture in an

individual bag (Tr. 20-23, 27, 37-38, 235-238, 398-

399). Ramirez and others also acted as couriers for

petitioners on several occasions, taking “bagged up”

heroin from New York City to New Orleans, Louis-

iana (Tr. 24-26, 27-31, 33-34, 238-241).

1. Petitioners’ contention that the trial court impro-

perly restricted the cross-examination of Pamela

Ramirez is without merit.

During the course of her cross-examination,

petitioners sought to ask Pamela Ramirez whether she

was aware that the petitioners were subject to five-

year mandatory sentences if convicted. Petitioners

argued that this evidence would show the motive

Ramirez had for testifying for the government by

establishing the penalties she would have faced if

prosecuted with petitioners. The court sustained the

government’s objection, stating thai the penalties

petitioners faced were none of the jury’s concern

(Tr. 107, 108).

This ruling by the court was correct. Petitioners had

already elicited from the witness the fact that she was

cooperating with the government in return for an agree-

ment not to prosecute her, her mother and her sister on

charges growing out of the same offenses as those of the

petitioners. She had also testified that she hoped to ob-

tain a reduction of the sentence she and her husband were

facing on other unrelated drug charges.

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Ramirez had thus clearly indicated that her motive

for testifying was in large part self-protective. Asking her

if she was aware of the penalties petitioners faced if con-

victed was simply another way of covering the same ground;

at the same time, it would improperly have informed the

jury of the penalties that petitioners faced.

A similar situation occurred later in the trial, when

Ramirez was being questioned about state charges involv-

ing possession of narcotics. She adinitted that she was

awaiting sentencing on those charges, thus indicating that

she had a motive to cooperate with the prosecution in the

instant case. The court sustained a government objection

to a question asking what type of felony possession

was. Ramirez had already fully discussed the pending

state charges she faced, and any further discussion of the

type of felony involved would merely have been cumula-

tive (Tr. 162-163).

The limits of gross-examination to show bias and moti-

vation lie within the sound discretion of the trial court.

United States v. Blackwood, 456 F. 2d 526, 529 (C.A. 2):

United States v. Daddano, 432 F. 2d 1119, 1128 (C.A. 7),

" certiorari denied, 402 U.S. 905; Tinker v. United States,

417 F. 2d 542, 544 (C.A. D.C.), certiorari denied, 396

U.S. 864; United States v. Stacey, 452 F. 2d 1204 (C.A. 5).

There is no abuse where the “jury was otherwise in pos-

session of sufficient information concerning formative

events to make a ‘discriminating appraisal’ of a witness’

motives and bias.” United States v. Campbell, 426 F. 2d

547, 550 (C.A. 2). Such was the case here.

2. Petitioner Rene Texeira’s contention that the trial

court’s failure to comply with Rule 30,' constitutes reversi-

'Rule 30 was intended to prevent a defendant from arguing a theory

of defense to the jury only to have the court then refuse to give an in-

struction in that area. It reads as follows:

At the close of the evidence or at such earlier time during

the trial as the court reasonably directs, any party may

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ble error despite the lack of any evidence that petitioners

were prejudiced, is incorrect. :;

Prior to his closing argument, counsel for petitioner Rene

Texeira asked the trial court which of his requested in-

structions it intended to grant. The court responded that

it was not possible to decide at that time, and counsel

raised no objection (Tr. 579). When the court made its

decision on the requested instructions, it granted in sub-

stance all of petitioner Rene Texeira’s requests (Tr. 647).

No objection was made to the decision.

Courts have consistently held that the defendant must

show prejudice in order to require a reversal for failure

to comply with Rule 30. The party must show that he was

unduly or unfairly prevented from making his argument

to the jury or was substantially misied by the court’s action

or inaction in formulating his argument. Whitlock v.

United States, 429 F. 2d 942, 945-946 (C.A. 10); Walker

v. United States, 418 F. 2d 1116, 1118-1119 (C.A. D.C);

United States v. Kroncke, 459 F. 2d 697, 705 (C.A. 8);

United States v. Mendoza, 473 F. 2d 697, 700-701 (C.A.

file written requests that the court instruct the jury on the

law as set forth in the requests. At the same time copies

of such requests shall be furnished to adverse parties.

The court shall inform counsel of its proposed action upon

the requests prior to their arguments to the jury, but the

court shall instruct the jury after the arguments are complet-

ed. No party may assign as error any portion of the charge |

or omission therefrom unless he objects thereto before

the jury retires to consider its verdict, stating distinctly

the matter to which he objects and the grounds of his ob-

jection. Opportunity shall be given to make the objec-

ion out of the hearing of the jury and, on request of any

party. out of the presence of the jury.

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5); Wright v. United States, 339 F. 2d 578, 579-580 (C.A.

9). Here, there was no evidence of any prejudice to peti-

tioner by the court's failure to comply with Rule 30.

lt—t—therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

JUNE 1974,

DOJ-1974-06