Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal Docket No. 90-00031E)
Present: Becker, Hutchinson and Alito, Circuit Judges
HUTCHINSON, Circuit Judge.
Appellant Hector Cruz-Jiminez (Cruz-Jiminez) appeals a judgment in a criminal action in the United States District Court for the Western District of Pennsylvania convicting him of attempts to possess cocaine and heroin in violation of 21 U.S.C.A. § 846 (West Supp. 1992). He contends these convictions should be reversed because the evidence was insufficient to show he intended to possess either controlled substance. Alternately, he seeks a new trial on various grounds or a remand for resentencing. Only one of his arguments requires Discussion; namely, that the district court erred in denying his request for a writ of habeas corpus ad testificandum to secure the appearance of a prospective defense witness.*fn1 Because we are unable, on the present record, to determine whether the witness whose attendance Cruz-Jiminez sought to compel would have given relevant testimony favorable to Cruz-Jiminez on the key issue of intent, we will remand to the district court with instructions to hold a hearing or otherwise arrange to secure the substance of the proposed witness's testimony under oath to determine what the proposed witness is likely to say. If the record, as so developed, indicates the witness will testify as set out in Cruz-Jiminez's proffer, the district court should vacate Cruz-Jiminez's conviction, grant him a new trial and issue the writ to compel the witness's attendance and testimony under subpoena. For reasons discussed infra, we note that evidence in accord with the government's version of what the witness is expected to say will not necessarily make his testimony immaterial on the issue of Cruz-Jiminez's intent. On the other hand, if the record then shows that the witness's testimony will not be material to Cruz-Jiminez's defense, the conviction should stand.
On November 14, 1990, a federal grand jury sitting in the Western District of Pennsylvania indicted Cruz-Jiminez on two counts. In Count I, Cruz-Jiminez was charged with attempt to possess cocaine with intent to distribute in violation of 21 U.S.C.A. § 846. In Count II, he was charged with attempt to possess heroin with intent to distribute in violation of the same statute.
In the district court, counsel for Cruz-Jiminez made several requests for the issuance of a writ of habeas corpus ad testificandum to secure the appearance of a defense witness who was incarcerated at that time. The district court denied these requests. On April 24, 1991, following a jury trial in the United States District Court for the Western District of Pennsylvania, Cruz-Jiminez was convicted on both counts. Based upon these convictions, the district court sentenced Cruz-Jiminez to two concurrent terms of imprisonment for thirty months, followed by a two year period of supervised release. On October 3, 1991, Cruz-Jiminez filed a timely notice of appeal from the judgment and conviction.
Sometime prior to January 14, 1990, officials at the Federal Correctional Institution at McKean (FCI-McKean) received information from a confidential informant that visitors to inmate Osvaldo Rosa (Rosa) were going to place drugs in the facility's visiting area on January 14, 1990. On that day, acting on this information, prison officials conducted a "shakedown" or search of the visiting area following visitation hours. During the search, officials discovered cassette tapes and a package containing one large bag and twenty-seven smaller bags underneath a vending machine in the vending room adjacent to the facility's visiting area. The bags contained varying quantities of a white powdery substance or substances.
The officials removed the package and performed a field test. The test revealed that the package probably contained two different substances. Subsequent laboratory tests confirmed distinctly segregated quantities of heroin and cocaine.*fn2 Prison officials then substituted a plastic bag containing an unsegregated quantity of cornstarch for the package containing the controlled substances. This "dummy" bag was sprayed with theft detection powder which, when exposed to an ultraviolet light, would appear on anything that had come in contact with the sprayed item. Prison officials placed the "dummy" bag under one of the vending machines in the corner of the visiting area and then began surveillance of the vending room adjacent to the visiting area.
The parties' versions of the next significant event differ substantially. On the morning of January 15, according to the testimony of a key government witness, Officer Bebow (Bebow), Cruz-Jiminez, who spoke very little English and was a close associate of Rosa, approached Bebow and, through an inmate-interpreter whom Bebow could not identify, asked to be assigned to clean the visiting area. Cruz-Jiminez, unlike Rosa, had access to the visiting area because part of Cruz-Jiminez's prison work detail involved cleaning in the administration building where the visiting area is located. According to Bebow's version of events, he granted Cruz-Jiminez's request and informed him that he should do the work that evening after dinner.
Cruz-Jiminez alleges that he never asked to clean the visiting area but instead was paged to a prison official's office after dinner on the evening of January 15. He went to the office and through the interpretation of another inmate, believed to be Frank Sanchez (Sanchez), the official instructed him to clean the visiting area that evening. Counsel for Cruz-Jiminez represented that Sanchez's testimony would corroborate Cruz-Jiminez's version of the conversation. On several occasions during the proceedings, the parties discussed whether Sanchez would testify as Cruz-Jiminez represented with the government contending that Sanchez would not testify in accord with Cruz-Jiminez's proffer.
In any event, Cruz-Jiminez reported to clean the visiting area and vending room at approximately 6:30 p.m. on January 15, 1990. Prior to his arrival, officials verified that the "dummy" bag had not been disturbed. Officials observed Cruz-Jiminez through a surveillance camera while cleaning the visiting area, including the area in which the vending machines were located. Two observing officers testified, however, that he spent most of his time cleaning in the vending room and exited and re-entered the visiting area several times with supplies.*fn3
According to the surveillance tape and Officer Baird's testimony, after cleaning for over one hour, Cruz-Jiminez entered the supply closet to return some cleaning equipment and then again entered the vending area carrying some white rags. He proceeded to the vicinity of the vending machine where the dummy bag had been placed and reached underneath it with a rag. He brought the rag back, holding it in his hand and set it on a dust mop leaning against the desk in the visiting room. Officer Baird, an observing officer, testified that the rag had a bulge in it consistent with the size and shape of the dummy bag. Cruz-Jiminez exited the visiting area with ...