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Government of Virgin Islands v. Cruz

April 25, 1973



Author: Hunter

Before VAN DUSEN, ROSENN and HUNTER, Circuit Judges


HUNTER, Circuit Judge.

The defendant Roberto Cruz was convicted on February 10, 1972, by a jury in the district court of the Virgin Islands of selling heroin in violation of 19 V.I.C. § 604(a). His motion for a judgment of acquittal or, in the alternative, for a new trial was denied by the district court, and he was sentenced to ten-to-fifteen years in prison with a special three year parole term in addition thereto. 19 V.I.C. § 604(b)(1)(A). This appeal followed and we affirm.

A brief summary of the evidence is appropriate. On October 6, 1971, the Joint Narcotics Strike Force on St. Croix employed one Carlos Encarnaction to purchase narcotics from suspected pushers and to be available as a witness against them at trial.*fn1 Detective Jose Perez, head of the St. Croix Strike Force, testified that Encarnacion was informed on October 8, 1971 that he was to attempt to make a buy from one of four men, including the defendant, the next night during a Puerto Rican and Cruzan Friendship Day celebration at a lagoon near Christiansted. At about 8:00 p.m. on October 9, Encarnacion was strip searched by the police and given fifty dollars. He was then driven to the lagoon where he saw Cruz whom he knew from a methadone program which they both attended. According to Encarnacion, he approached Cruz who was with a woman and said "hello, how is everything," whereupon Cruz asked him if he wanted to buy any drugs. Encarnacion responded "yes", and he and the defendant went into a parking lot where Encarnacion purchased five decks of heroin for fifty dollars. After smoking a marijuana cigarette with Cruz, Encarnacion walked back to where Perez was waiting and gave him the five heroin decks. Encarnacion was then taken a short distance away and was again strip searched with nothing being found. Patrolman Jackson, who trailed Encarnacion at the lagoon, testified that he observed the transaction with Cruz but could not see how much money changed hands.

The defendant admitted selling heroin to Encarnacion, but he argued at trial that he was illegally entrapped into doing so. According to Cruz, on the day before the sale he, Encarnacion and a friend named Tomas Robles met after their methadone program and decided to go to a parade ground to smoke marijuana. Encarnacion shared some marijuana with them, and then he asked the defendant to get him some heroin because methadone was not helping him. Cruz testified that at first he refused and told Encarnacion that he did not want to be involved with drugs any more, but that he eventually agreed to do it after Encarnacion kept saying how "bad" he felt. Cruz said that he then went to a pusher who gave him some heroin on credit, and that he sold this heroin to Encarnacion without profit for twenty-five dollars. Robles was a witness for the defense and testified that on the day before the sale he heard Encarnacion ask Cruz to get drugs for him. Mrs. Cruz also testified that Encarnacion approached her husband at the lagoon and asked him "did you bring the tin."

As rebuttal, the government recalled Encarnacion who denied having requested the defendant to get heroin for him on the day before the sale. In addition, detective Perez was recalled and he testified that it was his decision to have Encarnacion attempt to make a purchase at the lagoon on October 9 and that Encarnacion was not informed of this plan until between nine and ten o'clock the night before.

Defendant's first contention on this appeal is that he was deprived of a fair and impartial jury trial since a majority of the jurors had also been jurors in at least one of several previous narcotics cases involving the same informer, Carlos Encarnacion.*fn2 During the jury voir dire, the defendant made two oral motions which were denied by the district court: first, to disqualify for cause those members of the jury array who had served in any prior trial where Encarnacion had testified; and second, to disqualify for cause those members of the array who had served in either of two very recent narcotics trials where Encarnacion had testified and where the defendants had been found guilty. The rationale behind both of these motions was the defendant's belief that jurors who had sat on such earlier cases had already formed an impression about the credibility of Encarnacion. Prior to these motions, the district court had determined which members of the array had participated in the earlier cases, and both the court and the defendant's attorney had asked them collectively whether they could judge the evidence in this case without reference to any other trial. Only one person indicated that his judgment would be influenced by what he had heard before, and he did not sit in this case. Although the defendant claims that it was prejudicial error to deny his motions, we recently decided in Government of the Virgin Islands v. De Jesus, 476 F.2d 771 (3d Cir. 1973),*fn3 and Government of the Virgin Islands v. Hendricks, 476 F.2d 776 (3d Cir. 1973) that the mere fact that a juror has sat on a prior case involving similar issues and some of the same witnesses does not, absent some showing of resulting prejudice, disqualify the juror. Since there was no showing of actual prejudice here, we reject the defendant's contention that the district court erred in its rulings on this point.

A second argument advanced by the defendant is that the trial judge wrongfully denied his motion for a mistrial after detective Perez testified on redirect examination that it would be impossible to use Encarnacion again because he would be shot. The specific question and answer occurred as follows:

Prosecutor: "Detective Perez, why is it that you would not use Encarnacion again?"

Perez: "It is impossible to use Mr. Encarnacion again because of what is going to happen, he is going to get shot, he is going to get killed on the street."

The defense immediately objected to this answer, and the trial judge ordered it struck from the record and cautioned the jury to disregard it. The defense then asked for a side bar conference and moved for a mistrial, but the trial judge refused to grant the motion on the ground that he did not believe that the answer was overly prejudicial to the defendant.

On this appeal, the defendant claims that detective Perez' statement caused him irreparable harm and that the trial judge therefore abused his discretion in denying a mistrial. We disagree. During cross-examination, defense counsel questioned Perez at some length about the number of cases on which Encarnacion had worked, the amount he was paid, and whether or not he would be used in the future as an informer. On redirect, the government asked Perez to explain why Encarnacion would not be used again. The wording of his response was unfortunate, but it made no reference to the defendant in any way. In view of this, and considering the fact that the jury already knew from the cross-examination that Encarnaction was an informer in at least seven different narcotics investigations, we do not think that Perez' reply prejudiced the ...

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