UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
______________
No. 92-1503
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR BRITO-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas
(July 9, 1993)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS Circuit Judges.
GOLDBERG, Circuit Judge:
Following a jury trial, Omar Brito-Hernandez was convicted for
distributing, and conspiring to distribute, five or more kilograms
of cocaine in violation of 21 U.S.C. § 841. Brito appeals, arguing
that the trial court abused its discretion in permitting the
government to impeach Brito with evidence of Brito's prior
conviction in the Republic of Mexico. We affirm the district
court, finding that any error committed by the lower court in
1 permitting the impeachment was harmless in light of the
overwhelming evidence against Brito.
FACTS
On October 28, 1990, an informant for the Drug Enforcement
Administration ("DEA"), Robert Stripland, and an undercover Special
Agent for the DEA, Timothy Sellers, met with Ismael Corral, Roberto
Fragoso, and Herlinda Domingues, in the La Quinta Hotel in Lubbock,
Texas, for the purpose of negotiating a cocaine sale. After
negotiating the deal, Corral telephoned the supplier, "El Tio," and
arranged to pick up nine kilograms of cocaine in Odessa, Texas, the
next day.
The next morning Corral drove Stripland to Odessa for the
purpose of obtaining the cocaine. In Odessa, Corral and Stripland
were met by the appellant Omar Brito-Hernandez. Corral got into
the car driven by Brito, drove away, and later returned to his
client Stripland with a backpack containing seven kilograms of
cocaine and stated, "this is what he gave me."
Brito was subsequently arrested on October 30, 1991, at his
residence in Odessa. A search of Brito's house revealed several
papers connecting Brito to the drug deal negotiated in the La
Quinta Hotel. Documents found on the dresser in Brito's residence
had El-Tio's name and phone number on them, and the phone number of
the La Quinta Hotel was written on an envelope found in Brito's
bathroom dresser. Further evidence was later discovered connecting
Brito to the La Quinta drug transaction, including telephone
2 records from El Tio's apartment which establish that on the night
of the drug deal in the La Quinta Hotel, several calls were made
from El Tio's apartment to the La Quinta Hotel and to Brito's
residence in Odessa.
On the morning of October 31, 1991, Brito orally confessed to
detective Duarte of the Odessa Police Department. In his
confession, Brito admitted to storing and distributing cocaine
obtained from El Tio, and to his involvement in the drug
transaction negotiated in the La Quinta Hotel. On November 1,
1991, Brito made a second oral confession to Special Agent Sellers
repeating the same details that he had earlier confessed to Duarte.
Four days prior to the commencement of trial the government
filed an Enhancement Information, alleging that Brito had been
previously convicted of a felony drug offense in Mexico. On the
morning before jury selection, Brito requested a continuance, and
a ruling in limine precluding the government from impeaching Brito
on the basis of the prior Mexican conviction. The district court
denied both of Brito's motions.
At trial, Brito testified on his own behalf. During the
government's cross examination of Brito, the government introduced
evidence regarding Brito's Mexican conviction for the purpose of
impeachment. On February 13, 1992, the jury found Brito guilty as
charged.
After the conviction, but prior to sentencing, Brito filed a
supplemental response to the government's Enhancement Information,
claiming that by an order of the Mexican court, entered on April
3 29, 1992, his Mexican conviction was indefinitely suspended.
Because this new information raised doubt as to the validity and
finality of Brito's Mexican conviction, the government withdrew its
motion for sentence enhancement. Brito was sentenced to 151
months in prison and a five-year term of supervised release.
ANALYSIS
Appellant argues that the trial court abused its discretion in
admitting evidence regarding Brito's prior Mexican conviction for
the purpose of impeachment. Brito claims that the Mexican
conviction is "constitutionally invalid," and thus it could not
have been properly used to impeach his credibility. It is well
established that "the use of constitutionally invalid prior
convictions for impeachment purposes is error of constitutional
dimension." Zilka v. Estelle, 529 F.2d 388, 389 (5th Cir. 1976)
cert. den. 429 U.S. 981 (1976).
Brito alleges that the Mexican conviction is constitutionally
invalid on two grounds. First, the Mexican legal system did not
provide Brito the right to a trial by jury. Second, Brito was
convicted by an appellate court that reversed a lower court's
acquittal of Brito. Hence, Brito's conviction was obtained in
violation of the United States Constitution's prohibition on double
jeopardy.1
1 In addition to infirmities under the United States Constitution, actions regarding the Mexican conviction taken by the Mexican government, and the Mexican judiciary, subsequent to Brito's conviction put into serious doubt the status and validity of that conviction under the laws of Mexico. Brito was
4 We have found no circuit court decision addressing the
validity of a foreign conviction obtained in violation of double
jeopardy, and only one decision addressing the validity of a
foreign conviction obtained without the right to a jury. In United
States v. Wilson, 556 F.2d 1177 (4th Cir.) cert. den. 434 U.S. 986
(1977), the Fourth Circuit upheld the impeachment of a defendant on
the basis of a prior conviction obtained in West Germany. The
appellant in Wilson argued that the German conviction was
constitutionally invalid because it was obtained without giving the
defendant the right to a jury trial. The Wilson court rejected the
appellant's argument, holding that "a jury trial is not essential
for fairness in every system of justice," and thus that "the
defendant has not shown that the German legal system lacks the
procedural protection necessary for fundamental fairness." Id. at
1178.
We need not reach, and we express no opinion on, the question
of whether a foreign conviction obtained in violation of the right
to be free from double jeopardy, or the right to a trial by a jury,
may be used to impeach a defendant. We find that even if the
introduction of the Brito's prior Mexican conviction was a
constitutional error, this error was harmless beyond a reasonable
doubt.
The Supreme Court, in Chapman v. California, instructed that
originally sentenced for seven years but was released after serving a term of seven months.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
______________
No. 92-1503
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR BRITO-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas
(July 9, 1993)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS Circuit Judges.
GOLDBERG, Circuit Judge:
Following a jury trial, Omar Brito-Hernandez was convicted for
distributing, and conspiring to distribute, five or more kilograms
of cocaine in violation of 21 U.S.C. § 841. Brito appeals, arguing
that the trial court abused its discretion in permitting the
government to impeach Brito with evidence of Brito's prior
conviction in the Republic of Mexico. We affirm the district
court, finding that any error committed by the lower court in
1 permitting the impeachment was harmless in light of the
overwhelming evidence against Brito.
FACTS
On October 28, 1990, an informant for the Drug Enforcement
Administration ("DEA"), Robert Stripland, and an undercover Special
Agent for the DEA, Timothy Sellers, met with Ismael Corral, Roberto
Fragoso, and Herlinda Domingues, in the La Quinta Hotel in Lubbock,
Texas, for the purpose of negotiating a cocaine sale. After
negotiating the deal, Corral telephoned the supplier, "El Tio," and
arranged to pick up nine kilograms of cocaine in Odessa, Texas, the
next day.
The next morning Corral drove Stripland to Odessa for the
purpose of obtaining the cocaine. In Odessa, Corral and Stripland
were met by the appellant Omar Brito-Hernandez. Corral got into
the car driven by Brito, drove away, and later returned to his
client Stripland with a backpack containing seven kilograms of
cocaine and stated, "this is what he gave me."
Brito was subsequently arrested on October 30, 1991, at his
residence in Odessa. A search of Brito's house revealed several
papers connecting Brito to the drug deal negotiated in the La
Quinta Hotel. Documents found on the dresser in Brito's residence
had El-Tio's name and phone number on them, and the phone number of
the La Quinta Hotel was written on an envelope found in Brito's
bathroom dresser. Further evidence was later discovered connecting
Brito to the La Quinta drug transaction, including telephone
2 records from El Tio's apartment which establish that on the night
of the drug deal in the La Quinta Hotel, several calls were made
from El Tio's apartment to the La Quinta Hotel and to Brito's
residence in Odessa.
On the morning of October 31, 1991, Brito orally confessed to
detective Duarte of the Odessa Police Department. In his
confession, Brito admitted to storing and distributing cocaine
obtained from El Tio, and to his involvement in the drug
transaction negotiated in the La Quinta Hotel. On November 1,
1991, Brito made a second oral confession to Special Agent Sellers
repeating the same details that he had earlier confessed to Duarte.
Four days prior to the commencement of trial the government
filed an Enhancement Information, alleging that Brito had been
previously convicted of a felony drug offense in Mexico. On the
morning before jury selection, Brito requested a continuance, and
a ruling in limine precluding the government from impeaching Brito
on the basis of the prior Mexican conviction. The district court
denied both of Brito's motions.
At trial, Brito testified on his own behalf. During the
government's cross examination of Brito, the government introduced
evidence regarding Brito's Mexican conviction for the purpose of
impeachment. On February 13, 1992, the jury found Brito guilty as
charged.
After the conviction, but prior to sentencing, Brito filed a
supplemental response to the government's Enhancement Information,
claiming that by an order of the Mexican court, entered on April
3 29, 1992, his Mexican conviction was indefinitely suspended.
Because this new information raised doubt as to the validity and
finality of Brito's Mexican conviction, the government withdrew its
motion for sentence enhancement. Brito was sentenced to 151
months in prison and a five-year term of supervised release.
ANALYSIS
Appellant argues that the trial court abused its discretion in
admitting evidence regarding Brito's prior Mexican conviction for
the purpose of impeachment. Brito claims that the Mexican
conviction is "constitutionally invalid," and thus it could not
have been properly used to impeach his credibility. It is well
established that "the use of constitutionally invalid prior
convictions for impeachment purposes is error of constitutional
dimension." Zilka v. Estelle, 529 F.2d 388, 389 (5th Cir. 1976)
cert. den. 429 U.S. 981 (1976).
Brito alleges that the Mexican conviction is constitutionally
invalid on two grounds. First, the Mexican legal system did not
provide Brito the right to a trial by jury. Second, Brito was
convicted by an appellate court that reversed a lower court's
acquittal of Brito. Hence, Brito's conviction was obtained in
violation of the United States Constitution's prohibition on double
jeopardy.1
1 In addition to infirmities under the United States Constitution, actions regarding the Mexican conviction taken by the Mexican government, and the Mexican judiciary, subsequent to Brito's conviction put into serious doubt the status and validity of that conviction under the laws of Mexico. Brito was
4 We have found no circuit court decision addressing the
validity of a foreign conviction obtained in violation of double
jeopardy, and only one decision addressing the validity of a
foreign conviction obtained without the right to a jury. In United
States v. Wilson, 556 F.2d 1177 (4th Cir.) cert. den. 434 U.S. 986
(1977), the Fourth Circuit upheld the impeachment of a defendant on
the basis of a prior conviction obtained in West Germany. The
appellant in Wilson argued that the German conviction was
constitutionally invalid because it was obtained without giving the
defendant the right to a jury trial. The Wilson court rejected the
appellant's argument, holding that "a jury trial is not essential
for fairness in every system of justice," and thus that "the
defendant has not shown that the German legal system lacks the
procedural protection necessary for fundamental fairness." Id. at
1178.
We need not reach, and we express no opinion on, the question
of whether a foreign conviction obtained in violation of the right
to be free from double jeopardy, or the right to a trial by a jury,
may be used to impeach a defendant. We find that even if the
introduction of the Brito's prior Mexican conviction was a
constitutional error, this error was harmless beyond a reasonable
doubt.
The Supreme Court, in Chapman v. California, instructed that
originally sentenced for seven years but was released after serving a term of seven months. Brito was allegedly told upon his early release that "everything was an error." The Mexican government then issued an order "suspending" Brito's conviction.
5 "before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond
a reasonable doubt." 87 S.Ct. 824, 828 (1967). Applying the
Chapman standard in Zilka, we explained that a conviction must
stand "if, upon a reading of the trial record, the court is firmly
convinced that the evidence of petitioner's guilt was overwhelming
and that the jury would have reached the same result without the
tainted evidence." 529 F.2d at 392.
The evidence of Brito's guilt is overwhelming. Two different
government witnesses, detective Duarte of the Odessa Police
Department and DEA Special Agent Sellers, testified that Brito
orally confessed to storing and distributing cocaine obtained from
his supplier El Tio, and to his involvement in the drug deal that
was negotiated at the La Quinta Hotel. Brito's confessions were
consistent, specific, and corroborated by additional evidence.
Brito confessed to both Duarte and Sellers that he stored the
cocaine procured from El Tio at a ranch house, and a search of the
ranch house revealed a one kilogram brick of cocaine. Moreover,
documents found in Brito's house directly linked Brito to El Tio
and to the drug deal negotiated at the La Quinta Hotel. Documents
in Brito's residence contained both El Tio's name and phone number,
and the phone number of the La Quinta Hotel where the drug
transaction was completed. Also establishing Brito's connection to
the drug deal was the testimony of Brito's co-defendants, and the
telephone records from El Tio's apartment showing that several
calls were made from El Tio's apartment to the La Quinta Hotel and
6 to Brito's residence in Odessa. Given the weight of the evidence
against Brito, it is beyond reasonable doubt that the jury's
verdict would not have been different if the impeaching evidence
had been excluded. See United States v. Williams, 957 F.2d 1238,
1244 (5th Cir. 1992).
Appellant makes two additional arguments on appeal. Appellant
claims that the trial court abused its discretion in not granting
Brito's motion for a continuance to allow Brito's attorney time to
investigate the status of the Mexican conviction. "[T]he decision
to grant a continuance lies within the sound discretion of the
trial judge and is subject to reversal only for an abuse of that
discretion." United States v. Hopkins, 916 F.2d 207, 217 (5th Cir.
1990). Moreover, "a defendant can obtain reversal only by
demonstrating serious prejudice." United States v. Mitchell, 777
F.2d 248, 255 (5th Cir.) cert. den. 475 U.S. 1096 (1986). Brito
asserts that a continuance would have enabled him to present
evidence regarding the questionable status of the Mexican
conviction. However, the order suspending Brito's Mexican
conviction was not issued until April 29, 1992, and the Brito's
trial was scheduled to commence on February 10, 1992. As the
Mexican court issued its order two and half months after the start
of the instant trial, even if a reasonable continuance had been
granted Brito would not have been able to discover the order prior
to trial. We find nothing in the record to support Brito's
contention that the trial judge abused its discretion. Appellant
also argues that the trial court erred in failing to grant Brito's
7 motion for a mistrial after a government witness testified that a
photograph used to identify Brito came from the Odessa Police
Department. The photograph itself was not introduced into evidence
nor was it exhibited to the jury. The court instructed the jury to
disregard the testimony regarding the source of the photograph.
The district court did not abuse its discretion in denying
appellant's motion for a mistrial.
CONCLUSION
For the foregoing reasons, the decision of the district court
is AFFIRMED.