United States v. Carrillo

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
_________________________

(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.