IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-8401
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AUGUSTIN MORA CARRILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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(April 29, 1994)
Before SMITH and BARKSDALE, Circuit Judges, and WALTER,* District
Judge.
JERRY E. SMITH, Circuit Judge:
Augustin Carrillo appeals his conviction on one count of
distribution of controlled substances, in violation of 21 U.S.C.
§ 841. He contends that the district court erred in (1) admitting
police mugshots that were used to bolster the validity of the
police identification and (2) refusing to allow cross-examination
of a police officer concerning his ability to identify defendants
in other unrelated cases. Finding no error, we affirm.
*
District Judge of the Western District of Louisiana, sitting by
designation.
I.
A.
In January 1991, Detective Leo Alonzo received complaints that
a man named "Tito" was selling drugs in the 800 block of West
Commerce in San Antonio. Alonzo obtained "front" money from his
supervisor and arrived at the address around 10:00 a.m. on
January 8. He observed a man loitering outside the "Three Kings
Lounge" who asked him what he wanted. Alonzo stated that he sought
Tito; the man pointed up the street to an individual walking toward
the detective.
Alonzo walked up to the individual and carefully studied his
facial features, noticing his unusual protruding lower lip. The
individual asked Alonzo what he wanted; Alonzo replied, "Veinte,"
meaning twenty dollars worth of narcotics. Alonzo handed the man
twenty dollars, and the man pulled a balloon out of his mouth and
handed it to the detective. The exchange lasted approximately
twenty to twenty-five seconds. Chemists later determined that the
balloon contained a mixture of cocaine and heroin. Alonzo's
partner, Detective Jim Barbe, retrieved a photograph of Augustin
Mora Carrillo ("Carrillo") from the police department "mug book,"
and Alonzo affirmatively identified the man.
B.
Carrillo was indicted on one count of distribution of cocaine
and heroin in violation of 21 U.S.C. § 841. He was convicted by a
jury, but that conviction was overturned based upon the improper
admission of prior convictions the government used to prove his
identity. United States v. Carrillo, 981 F.2d 772 (5th Cir. 1993).
Prior to his second trial, Carrillo sought to exclude the finger-
pointing identification by the man outside the Three Kings Lounge
and the mugshots. The photograph (exhibit 3, not offered into
evidence) had been split into two, a profile (3a) and a frontal
view (3b), both published to the jury. Furthermore, the photos had
been cropped and enlarged to remove writing and height measurement
lines. The district court allowed the photographs and refused to
exclude the identification information.
On cross-examination of Alonzo, Carrillo's counsel questioned
the detective about his inability to recognize photographs in an
unrelated prosecution. The government objected to the use of
extraneous evidence, and the objection was sustained. Neverthe-
less, defense counsel was permitted to cross-examine Alonzo about
his botched identification of a defendant in another case.
Carrillo was convicted again.
II.
Carrillo first challenges the district court's admission of
evidence concerning his prior convictions, specifically, the
"intelligence information"1 and the mugshots. Carrillo objected to
the admission of this evidence in limine and at trial. We review
the district court's evidentiary rulings for abuse of discretion;
in a criminal case, however, review of the trial court's eviden-
1
"Intelligence information" refers to the complaints of a man named
Tito selling drugs and the identification of Tito by the gentleman at the
Three Kings Lounge.
tiary rulings is necessarily heightened. Carrillo, 981 F.2d at
773.
A.
The "intelligence information" issue turns on the definition
of hearsay and the exceptions thereto. An out-of-court declaration
is inadmissible as hearsay only if offered to prove the truth of
the matter asserted. FED. R. EVID. 801(c), 802. Out-of-court
statements providing background information to explain the actions
of investigators are not hearsay. United States v. Gonzalez,
967 F.2d 1032, 1035 (5th Cir. 1992); cf. United States v.
Hernandez, 750 F.2d 1256 (5th Cir. 1985) (reversing conviction
where background information was used in prosecutor's closing for
truth of matter asserted and no limiting instruction was given).
The telephone complaints were not offered to prove that Alonzo had
purchased the narcotics from Carrillo. Instead, the statement that
a man named Tito was selling drugs was offered by the government
for the purpose of explaining why Alonzo went to that location in
the first place. And the fact that the man outside the Three Kings
Lounge pointed to Carrillo was not offered to prove that Carrillo
was Tito or that Carrillo was dealing drugs; rather, it explained
why Alonzo approached Carrillo.
Carrillo argues that even if the evidence is not hearsay,
courts scrutinize such testimony because of its prejudicial effect.
See United States v. Gomez, 529 F.2d 412, 416-17 (5th Cir. 1976);
FED. R. EVID. 403. The more directly an out-of-court declaration
implicates the defendant, the greater the danger of prejudice.
Conversely, when the statement does not directly implicate the
defendant, the probative value outweighs the prejudicial effect.
See, e.g., United States v. Martinez, 939 F.2d 412, 415 (7th Cir.
1991) (holding that testimony about out-of-court declaration
identifying "a man" was nonprejudicial). Here, Alonzo referred to
a man named Tito. Although the jury obviously inferred that
Carrillo was Tito, this linking was less obvious than was the
statement in Gonzalez that "Gonzalez was trafficking in large
quantities of heroin and cocaine." Gonzalez, 967 F.2d at 1034.
Furthermore, the court in the instant case gave a lengthy limiting
instruction.
Carrillo claims that the reason for Alonzo's presence in the
area was not at issue in the case, and therefore the background
information was irrelevant. But the government was entitled to
give the jury background information to explain why Alonzo was
looking for a man named Tito. Given the limiting instruction, the
testimony was not unfairly prejudicial.
B.
Carrillo also complains that the photographs prejudiced him
because they were recognizable as mugshots. We review the
admission of photographs for abuse of discretion. United States v.
Cochran, 697 F.2d 600, 608 (5th Cir. 1983). In United States v.
Torres-Flores, 827 F.2d 1031, 1037, 1038-39 (5th Cir. 1987), this
court adopted a three-part test for determining the admissibility
of mugshots: (1) The government must have a demonstrable need to
introduce the photographs; (2) the photographs must not imply that
the defendant has a criminal record; and (3) the manner of
introduction at trial must not draw attention to the source or
implications of the photographs.
The first requirement is met here where identification is the
central issue of the case. Id. at 1039. The second factor weighs
in favor of the government. In Torres-Flores, the court concluded
that the jury easily could have realized that the photo was a
mugshot where the measuring tape was visible in the background and
the government "inartfully" taped over the police notes on the
bottom of the photo. Here, on the other hand, the police cropped
and enlarged the photos so that no identifying marks or measuring
lines were visible. The only factor that would lead a jury to
conclude that the photos were taken from a mugshot is the fact that
the defendant was pictured in the classic mugshot pose, a front and
side view. We conclude that the government sufficiently disguised
the photos, especially given the fact that the poses were split
into two separate photographs that were physically separated (i.e.,
cut apart into two sheets of paper). If these photos were
inadmissible, it is difficult to imagine how a mugshot could be
altered to satisfy the second requirement.
The third factor is the manner of introduction of the photos.
Although Alonzo made no mention of the photos' source, Officer
Barbe testified that he had retrieved the photos from the "SAPD
Identification Bureau." This statement weighs in favor of the
defendant, except that the defense failed to object to it and that
the answer was unresponsive to the prosecutor's question.
Furthermore, the government claims that Barbe was talking about
exhibit 3, not 3a or 3b. We conclude that the admission of the
photos was not an abuse of discretion, given the importance of the
evidence and the substantial success in disguising the source.
Moreover, the admission of the intelligence information and the
photos together did not prejudice the defendant by implying that he
had a criminal record.
III.
Carrillo also contends that the district court improperly
restricted his cross-examination of Alonzo. The district court has
broad discretion in limiting cross-examination, United States v.
Duncan, 919 F.2d 981, 985 (5th Cir. 1990), cert. denied, 111 S. Ct.
2036 (1991), but the court must safeguard the defendant's right
under the Sixth Amendment to confront witnesses against him,
Carrillo v. Perkins, 723 F.2d 1165, 1168 (5th Cir. 1984).
Carrillo claims that the court's refusal to allow the
impeachment of Alonzo's identification skills deprived Carrillo of
the opportunity to present his sole defense. Carrillo's attorney
would have shown Alonzo several photographs and asked him to
identify the individuals. If Alonzo could not identify the
individuals in the photos, Carrillo's attorney would then point out
that the men were all criminal defendants prosecuted for drug
offenses where Alonzo was the complainant. This technique was
designed to prove that Alonzo's identification technique was
flawed.
The court did not allow this line of cross-examination because
it constituted extrinsic evidence, not inconsistent statements.
Under FED. R. EVID. 608(b) specific instances of conduct may not be
proved by extrinsic evidence. United States v. Martinez, 962 F.2d
1161, 1164 (5th Cir. 1992); see also H. Richard Uviller, Essay,
Credence, Character, and the Rules of Evidence: Seeing Through the
Liar's Tale, 42 DUKE L.J. 776, 805 (1993). Carrillo was allowed to
cross-examine Alonzo concerning an unsuccessful identification in
another case, however. Although the line of questioning might have
been useful, it was impermissible under rule 608(b), and therefore
the district court did not abuse its discretion.
AFFIRMED.