Unpublished Disposition, 862 F.2d 875 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 862 F.2d 875 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Miguel BORROTO-VASQUEZ, Defendant-Appellant.

No. 87-1241.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 1988.Decided Nov. 9, 1988.

Before FERGUSON and LEAVY, Circuit Judges, and STEPHEN V. WILSON,*  District Judge.

MEMORANDUM** 

I.

Miguel Borroto-Vasquez, an inmate housed in the Administrative Segregation Unit at the Phoenix Federal Correctional Institution, was convicted of assaulting Lt. King and Officer Cardiel ("the guards") on June 22, 1986, upon their returning him to his cell after showering. At trial Borroto-Vasquez denied having assaulted the guards, and argued that, in fact, they had attacked him.

A nurse examined Borroto-Vasquez and the guards following this incident and found that the guards suffered minor injuries. Borroto-Vasquez, in contrast, had lacerations over his right eye and above the lip which required stitches, multiple bruises across his upper body and back, an injury to his left knee, and a cut finger.

Four days after the confrontation, another inmate, Miguel Angel Ramirez-Aguilar, who was housed in the cell adjacent to Borroto-Vasquez and witnessed much of the incident, wrote the F.B.I. requesting that they investigate the events of June 22nd. He was subsequently interviewed by the F.B.I. and by prison officials. He stated that he saw one of the guards beating Borroto-Vasquez while he was still handcuffed, that he heard one of the guards say to Borroto-Vasquez that he was going to kill him, and that Borroto-Vasquez repeatedly asked the guards why they were beating him up.

Although this incident occurred in June of 1986 and was investigated by both prison officials and the F.B.I. within two weeks after its occurrence, Borroto-Vasquez was not indicted until March 25, 1987. He was arraigned, and defense counsel appointed, on April 15, 1987. Seven days later, on April 22, 1987, Ramirez-Aguilar had completed his prison sentence and was immediately deported by the government without notice to defense counsel. Thus, defense counsel never interviewed Ramirez-Aguilar. Borroto-Vasquez moved to dismiss the indictment on the ground that an important, exculpatory defense witness was deported by the government. This motion was denied. In the alternative, Borroto-Vasquez sought to have Ramirez-Aguilar's statements to the F.B.I. and prison officials admitted under Federal Rule of Evidence 804(b) (5). This request was also denied.

Miguel Borroto-Vasquez was subsequently convicted by a jury of two counts of assaulting federal officers in violation of 18 U.S.C. §§ 111, 1114. He appeals the denials of his motion for dismissal of the indictment due to the government's deportation of an exculpatory witness and his alternative request at trial for admission of hearsay statements made by the deported witness. In addition, Borroto-Vasquez argues that the district court abused its discretion by restricting defense counsel's questioning of defense witnesses and comments in closing argument, and by refusing to give the jury a self-defense instruction. We reverse the conviction and remand to the district court for proceedings consistent with this memorandum disposition.

II.

A.

"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 108 S. Ct. 883, 887 (1988) (citations omitted); see also United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984). In presenting his case, Borroto-Vasquez did not argue a self-defense theory. However, he requested that a self-defense instruction be given to the jury, and the court refused. The district judge refused to give a self-defense instruction because he believed that there was no evidence to support the instruction, and especially because Borroto-Vasquez claimed he never hit the guards.1 

Recently in Mathews v. United States, the Supreme Court reviewed the conviction of a defendant charged with having accepted a gratuity in exchange for an official act in violation of 18 U.S.C. § 201(g). Before trial the defendant had filed a motion in limine seeking to raise an entrapment defense. The district court denied the motion because the defense of entrapment was "inconsistent per se " with the defense pleaded by the defendant in that he would not admit, among other elements of the charged offense, that he had the requisite criminal intent. The court subsequently refused to instruct the jury on entrapment, and the defendant was convicted.

The Court reversed the conviction, holding that it was "not persuaded ... that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject." 108 S. Ct. at 888. Thus, the fact that Borroto-Vasquez did not plead self-defense does not deny him the right to a jury instruction on the defense so long as there is evidence to support such an instruction.

As Borroto-Vasquez correctly alleges, there is evidence in the record clearly providing a basis for a self-defense instruction. Most directly, the testimony of the two guards that Borroto-Vasquez attacked them raises a jury question as to the nature of the physical conflict, as does a comparison of the physical injuries suffered by Borroto-Vasquez and the guards, and the testimony of one witness that he saw the guards punching and kicking Borroto-Vasquez.

In addition, Ramirez-Aguilar's testimony would have supported a self-defense finding by the jury. In his statements to the F.B.I. and prison officials, he stated repeatedly that he saw one of the guards beating Borroto-Vasquez, that he heard one of the guards say to Borroto-Vasquez that he was going to kill him, and that Borroto-Vasquez repeatedly asked the guards why they were beating him up.2 

We conclude that the district court abused its discretion in refusing to give an instruction on self-defense and the requisite accompanying instruction on the government's burden of proof when self-defense is at issue.3 

B.

The district court refused to allow defense counsel to question inmate witnesses, or comment in closing argument, on the ramifications that testifying against prison guards could have on their parole and safety within the prison. The government asserts that the imposition of such restrictions was proper and within the district court's discretion because the substance of what defense counsel sought to introduce into the record was irrelevant. The scope of the examination of a witness, like the conduct and content of counsels' closing argument, is determined by the trial court in the exercise of its discretion. See Herring v. New York, 422 U.S. 853, 862 (1975). In the instant case, however, the court abused its discretion.

When defense counsel attempted to question one of the inmate witnesses regarding how his testifying against prison guards could impact him, the district judge refused to allow the line of questioning. The district judge believed that such testimony was immaterial and a waste of the court's time, and admonished defense counsel "you can argue that." Later, however, when counsel attempted to do so in his closing argument, the court sustained the government's objections, finding counsel's comments "immaterial and irrelevant" and "completely outside the record." Furthermore, despite repeated requests, the district judge refused to allow defense counsel to approach the bench to remind the judge that he had previously been given permission to argue the point.

The information defense counsel wanted to present to the jury was not "immaterial and irrelevant". The propriety of questioning witnesses not only about their motives for testifying, but also about the potential consequences they subject themselves to by appearing in court is well established. The Supreme Court has explained that " [p]rejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them." Alford v. United States, 282 U.S. 687, 692 (1931) (citations omitted).

The district court abused its discretion in restricting as it did defense counsel's line of questioning and closing argument.

CONCLUSION

The district court abused its discretion in refusing to give an instruction on self-defense and the requisite accompanying instruction on the government's burden of proof, and by restricting defense counsel's questioning and closing argument when counsel merely sought to put the testimony of the inmate witnesses in their "proper setting". In light of our decision regarding the self-defense instruction, we remand to the district court for an evidentiary hearing to reconsider Borroto-Vasquez' motion to dismiss the indictment given the government's deportation of an exculpatory witness, and his alternative request for admission of Ramirez-Aguilar's statements.

Borroto-Vasquez' conviction is vacated and the case remanded for an evidentiary hearing and a new trial.

REVERSED and REMANDED.


 *

Hon. Stephen V. Wilson, United States District Judge for the Central District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The adequacy of jury instructions, "viewed as a whole and in the context of the trial," is reviewed for an abuse of discretion. United States v. Park, 421 U.S. 658, 675 (1975)

 2

The case is distinguishable from United States v. Jackson, where the evidence cited to by the defendant did not provide any basis for an instruction because it was only indirectly relevant to the facts upon which such a defense depended. See 726 F.2d at 1468 (testimony of neighbors that they heard one gun shot, and of brother who appeared later, that police did not identify themselves in his presence, insufficient to support inference that defendant was unaware of the identity of police officers). In contrast, Borroto-Vasquez wanted the jury to be able to consider self-defense as it evaluated evidence directly bearing on who initiated, and to what degree each individual participated in, the violence at issue

 3

In light of our reversal of Borroto-Vasquez' conviction on the basis of this issue, and with special recognition of the value of Ramirez-Aguilar's testimony to the issue of self-defense, we remand to the district court for an evidentiary hearing to reconsider Borroto-Vasquez' motion to dismiss the indictment and the admissibility of Ramirez-Aguilar's statements

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