United States v. Gonzalez

99 F. App'x 389
CourtCourt of Appeals for the Third Circuit
DecidedMay 25, 2004
Docket03-1674
StatusUnpublished

This text of 99 F. App'x 389 (United States v. Gonzalez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gonzalez, 99 F. App'x 389 (3d Cir. 2004).

Opinions

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Angel Gonzalez appeals from the District Court’s judgment and conviction or[391]*391der. Gonzalez was sentenced to an imprisonment term of 120 months following his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Gonzalez argues that he was denied a fair trial because the judge permitted the Government to suggest to the jury, through the cross-examination of a defense witness, that Gonzalez was part of a gang.

I.

Background Facts

On October 15, 2001, Officers John Krivulka and Joseph Leighthardt were on duty in Philadelphia’s 26th Police District when they received a call of a burglary in progress at 218 West Sergeant Street. Upon arriving at the scene in their marked patrol car, Officer Krivulka observed Gonzalez exiting the driver’s side of a car that was parked partially on the street and partially on the sidewalk. Gonzalez then walked over to Miguel Molina, who was seated on the front steps of 218 West Sergeant Street.

Officer Krivulka parked the patrol car and walked over to Gonzalez and Molina. As Officer Krivulka passed the car from which Gonzalez exited, he looked inside and saw a handgun on the front seat. Officer Leighthardt was already speaking with both Molina and Gonzalez when Officer Krivulka came up behind him and told him there was a weapon in the car from which Gonzalez had exited. Officer Leighthardt then told Gonzalez to turn around and put his hands behind his back. Gonzalez shoved Officer Leighthardt and fled, but was apprehended after a brief foot chase.

The handgun found in the car was a loaded Lorcin model with an obliterated serial number. The parties stipulated at trial that Gonzalez had previously been convicted of a crime punishable by imprisonment of a term exceeding one year. The jury subsequently found Gonzalez guilty of one count of possession of a firearm by a convicted felon.

Trial

Gonzalez’s appeal is limited to his challenge to the questions that the Assistant U.S. Attorney posed to Molina, who was a defense witness at Gonzalez’s trial. The District Court held a hearing outside the presence of the jury to determine the permissible scope of Molina’s testimony. The court stated that absent an offer of proof, it could not say in the abstract whether gang affiliation questions would be relevant on cross-examination. The Government sought to question Molina about his prior convictions and his numerous tattoos, particularly the one on his arm reading “fuck the law,” in order to establish Molina’s general attitude toward the law, his lack of credibility, and the possibility that the tattoos reflected gang membership. It reasoned that if Molina and Gonzalez were members of the same gang, it might suggest Molina had motive to skew his testimony so as to materially benefit Gonzalez’s defense.

During cross-examination, the prosecution asked Molina to describe his derogatory tattoo to the jury. It then asked Molina if any of his tattoos associated him with a particular gang, if he was a member of a gang, and if he knew any of the persons the prosecutor had named. As the prosecutor explained to the court, she suspected those persons were members of a gang. When Molina answered in the negative, the prosecutor moved on.

The objection by Gonzalez to this line of questioning was overruled. Out of the presence of the jury the District Court ruled that based on the offer of proof, the Government was entitled to “ask about the [392]*392relationship between the defendant and the witness, if any,” App. at 104a, but stopped short of allowing a separate line of questions about gangs or stopping the trial for a physical examination of tattoos. The court stated:

We’re not going to get into a separate trajectory about gangs, who belongs to what gangs and things like that. And I wouldn’t be inclined to interrupt the trial for physical examinations of anybody, but I think Mr. Molina can be asked about tattoos that are on his body.... That would tend to show his motive or his bias, I mean that’s why they’re relevant. I mean if he has a tattoo on his body which is derogatory to the law, I think that’s relevant to come out on cross-examination.... It goes to his motive and bias. I think it’s proper. But that to [me] sounds like that will be the extent of it.

App. at 103a-04a.

II.

Discussion

We review district court decisions regarding the admissibility of evidence for abuse of discretion. United States v. Saada, 212 F.3d 210, 220 (3d Cir.2000). “[T]he proper bounds of cross-examination are within the sound discretion of the trial court and, absent a showing of abuse, the exercise of that discretion will not be reversed by an appellate court.” United States v. Stevens, 935 F.2d 1380, 1393 n. 17 (3d Cir.1991) (quoting Lewis v. Rego Co., 757 F.2d 66, 73 (3d Cir.1985)).

The United States Supreme Court has stated that generally, “[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Here, the District Court held that the evidence elicited could go to establishing motive and bias of the defense witness.

Gonzalez argues that the District Court improperly allowed the Government to pose gang affiliation questions to Molina because the Government had failed to lay a proper foundation for those questions. He urges this court to adopt the holding of the Court of Appeals for the Tenth Circuit that “[a]lthough Abel permits the introduction of evidence of gang membership to show bias, the government must first lay a foundation showing that the defendant and the witness to be impeached belong to the same gang.” United States v. Keys, 899 F.2d 983, 986 (10th Cir.1990). The Government concedes that this rule of law is correct, but argues that “there is no bar to laying that foundation through the defense witness’ testimony” and that because “the prosecutor tried but failed to lay a foundation [through testimony], ... no evidence of gang membership was admitted.” Appellee’s Br. at 26-27.

While it may have been more prudent for the District Court to require the Government to proffer evidence in its possession linking Molina and Gonzalez to the same gang before it questioned Molina, the Government did have a good faith basis, founded on information from a police detective, for seeking to establish a gang-related connection between Molina and Gonzalez. Furthermore, the prosecutor did not stray outside the discretionary boundaries set forth by the District Court.

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