505 F2d 697 United States v. Miranda

505 F.2d 697

UNITED STATES of America, Plaintiff-Appellee,
v.
Ana Roberto MIRANDA, Defendant-Appellant.

No. 74-2217.

United States Court of Appeals, Ninth Circuit.

Oct. 23, 1974.

Howard G. Trapp, Trapp, Gayle, Teker, Weeks & Friedman, Agana, Guam, for defendant-appellant.

Duane K. Craske, U.S. Atty., District of Guam, Agana, Guam, for plaintiff-appellee.

Before MERRILL and HUFSTEDLER, Circuit Judges, and TAYLOR, District Judge.1

OPINION

PER CURIAM:

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1

We reverse Miranda's conviction for importing heroin and for conspiring to import heroin because the district court erred in admitting prejudicial hearsay testimony over appropriate objection.

2

Miranda entered Guam by commercial airplane carrying heroin with her personal effects. She was searched, and the heroin was found, when she arrived at the airport. Her motion to suppress was denied, and no error is claimed based upon the search.

3

As part of the Government's case-inchief, the prosecutor asked customs agent Flores what he knew about Miranda before she was searched. Over defense counsel's hearsay objection, the following colloquy took place:

4

'a. March 1st, 1973. I was talking with Lieutenant Roberto, the Commander of the Narcotics Section, regarding several people known to be smuggling drugs into Guam. And it was brought up that a person, namely Ana Miranda a/k/a Ana Hemsing, left for Hong Kong. She is about 40 years old. She is expected to return any time. and, furthermore, he mentioned that this person may be bringing drugs into Guam.

5

'. . . .g.

6

'q. In this case, who was the suspect?

7

'a. The name appeared on the information that I typed and distributed to the field offices was Ana Miranda, also known as Ana Hemsing. $10'q. What happened next concerning this particular defendant? $10'a. The next occasion that I had concerning the information on Ana Miranda, also known as Ana Hemsing, was on May 8th, 1973, I was at the Intelligence Office again and talking to Lieutenant Roberto on regarding drugs.

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8

'q. And will you stop and tell us who Lieutenant Roberto is?

9

'a. He is Commander in charge of the Narcotics Section, the Intelligence Unit, Department of Commerce, Government of Guam.

10

'q. Proceed.

11

'a. And he told me at the point on May 8th, 1973, that the person, namely Ana Miranda, also known as Ana Hemsing, is one of the eight suspects that he had received from a reliable source. He also mentioned that he had a memorandum pertaining to these eight names of suspects. And in this particular memorandum it was mentioned that the eight people are selling heroin and dealing heavy in Guam. One of the names mentioned in this memorandum is Ana Miranda, also known as Ana Hemsing.'

12

No explanation, other than overzealousness, emerges to excuse the prosecution's bringing this inadmissible, inflammatory testimony before the jury. The evidence was not conceivably relevant for any nonhearsay purpose. The antecedent motion to suppress left no room for prosecutorial surprise. The admission of this testimony was too devastating to permit us to invoke the harmless error rule.

13

Reversed and remanded.

1

Honorable fred Taylor, District Judge, District Of Idaho, sitting by designation