United States v. Joe Corona Valdez

RUBIN, Before JOLLY, site. TATE and Neither officer Cir- considered this impor- Judges. cuit tant to their investigation time, at the neither could identify the man. RUBIN, ALVIN B. Judge: Circuit No one picked up money the lard We consider the of an admissibility iden- agents can. The decided not to interview tification of the defendant made a law any of the owners vehicles that had enforcement officer after undergoing hyp- been identified as having parked been nosis. The officer had seen the defendant á the rest area because of the risk that this number of times during investigation might antagonize Instead, the extortionist. and knew him to be a suspect but had they awaited the receipt of further commu- been previously unable to identify him. nication from him. Under hypnosis the officer identified the later, A few weeks Butt received a defendant as the person he had earlier seen second extortion directing letter that mon- at the scene of the crime. He later identi- ey be left at drop another site. From a

fied the defendant in court. We hold that overhead, plane agents FBI maintained sur- it improper to his post-hypnotic admit veillance of the designated day area on the testimony. when the letter money directed that the a.m., left there. At they 8:30 observed a I. pickup truck with top a white a green 18, 1981, On February Butt, H.E. owner body parked beside an abandoned house on of HEB Grocery Company, received a letter property adjacent pick-up to the site. This threatening poison to food sold in his gro- truck was later belonging identified as to cery store placed $125,000 unless he in a can Valdez. The agents saw no other vehicles situated in a spot designated aon sketch of near the drop Again, site. the money was a roadside rest area about nine miles from never picked up. Pass, Eagle Texas. Agents Federal Knowing truck was Valdez’s Investigation, Bureau Depart- Texas only vehicle that ment of had been identified as Safety, Public Rang- Texas being sites, at both began drop Texas ers surveillance Ranger of the rest area. Us- Jackson ing brush, interviewed Valdez at his mesquite place trees and built they employment, the camouflaged HEB Grocery shelter from Store in sixty yards about Springs. Carrizo drop being site. Texas After Rangers Jackson and informed of rights, Haralson his Valdez secreted in the shelter. stated that he themselves had been at a and, Haralson took site ranch near the money second site on his note, HEB, off following placed day instructions it from Tuesday, March a.m., inside a lard can found buried at the between 9:00 that he and 9:30 and had re- pole pasture base of a in a area turned at 11:00 utility dogs a.m. feed the goats a fence the rest area. on the separated by ranch. Valdez followed the to Valdez letters the extortion office, he who dictated pro- where the sheriff’s agents to he testified handwriting exemplars prints, palm agents fingerprints, FBI vided Valdez from prevent followed been careful had handwriting exemplars he how asked letters. When seeing dictated of the extortion letters the text on, written had been to return what the notes agent. agreed an He knew him “Well, later it was some figured examination I polygraph replied, submit to a arranged for a Actually, paper Jackson paper.” that afternoon. white kind of identical, travel a considerable operator similar, but not polygraph in the box test, but, when to administer the distance notes were two extortion on which the returned, to submit to Valdez he refused written. indig- became the examination. Jackson interviews with the various At none of Valdez, Valdez still nant and cursed but ever hav- Jackson recall Ranger Valdez did the test. refused interviewing him at Valdez before ing seen found Valdez’s fingerprint experts FBI investigation grocery. After the HEB palm print on the first extortion right Valdez, Jackson, on suspicion had focused one. palm print his left on the second and Hunt were Haralson, agent FBI Curtis and later testified fingerprint specialist An FBI their to refresh in an effort hypnotized the heel these had been made prints undergoing Immediately before memories. stress palm, person of the and that a under recalling only reported Jackson hypnosis, palm leave a likely perspire more and is stopped had pickup and white green that a of the letters had at fingerprint. One site; noth- he remembered drop at the first palm prints and finger least a hundred driver or his activities. of the truck’s ing Valdez. someone other than trial, however, testified Jackson At Haralson that, March when he and on later, MosesAlaniz days agent A few FBI area, at the rest he saw hiding the were in Jackson met Valdez Ranger truck and pickup from the emerge site to take Valdez drop ranch near the second smoking in the rest area of his truck and the area. sit on a bench photographs some en- conversation, asked around. Valdez During agents looking their cigarette according to Jackson’s people respon- pasture, if he knew any Valdez tered the letters. He said that he did walked in the direction testimony, sible for not, nervous. When until he came yet appeared very camouflaged hiding place threatened, if Valdez did testified asked he had been feet of it. Jackson forty within the right not answer. then “broke off to that Valdez brush,” that Valdez and surmised into the later, asked Jackson days Valdez Several Jackson said have detected the blind. must him at Valdez’s home in Carrizo to meet the area. truck leave he later saw Valdez’s arrived, Jackson and Alaniz Springs. When consistent with state- testimony This house Valdez took them to an abandoned during hypno- made his ments Jackson had Inside, Valdez near the second site. identify Haralson never was able sis. containing box showed them a cardboard identi- than Jackson Valdez. No one other folders, envelopes that paper, notebook approached hiding having fied him as there two or three he said he had found or the first site. place (A with Jackson. days speaking after last not re- of the house had previous search II. he said items.) vealed these testimony state courts admit Numerous contain some- might that the box thought viewing by previous hypnosis, influenced of the extortion paper to the thing similar merely affecting credibili- procedure the box notes, and that the material These courts consider agent ty.1 case. The might important McQueen, State, Md.App. State v. 244 S.E.2d 414 N.C. Harding 246 A.2d v. Narciso, Glebock, v. State v. (1978); 616 S.W.2d 897 States (1968); United State, State, Chapman v. Clark (E.D.Mich.1977); (Tenn.Crim.App.1981); F.Supp. Wren, Creamer (Fla.Dist.Ct.App.1979); (Wyo.1982); see also State v. 379 So.2d 372 P.2d (1974); State, 205 S.E.2d 232 Ga.

H99 present recollection of past events, re- (6) person no other hypnotist than and sub- freshed hypnosis as it might be refreshed ject “should” be present during any “con- by reference prior to a statement or some tact” between the two. Oregon adopted other view, stimulus. In this traditional procedural similar requirements by statute legal devices such as cross examination, ex- in 1977.5 pert testimony on the inherent risks of hyp- guidelines FBI for hypnosis differ signifi- nosis, and cautionary instructions enable cantly from these safeguards. The guide- the jury to evaluate the credibility previ- require lines the subject’s permis- written ously hypnotized witnesses.2 to hypnotize sion him. They permit “quali- Other courts appraise jury’s ability to physicians fied” and dentists to conduct assess the credibility post-hypnotic testi- hypnosis, do not require that the hyp- mony more skeptically. require They notist work independently. A specially trial judge to make an initial ruling on trained FBI agent called a “hypnosis coordi- and admissibility to exclude the testimony nator” is required to “participate in the unless the prosecution demonstrates that it session;” hypnotic he acts as “liaison” be- employed rigorous procedural safeguards to tween the hypnotist and the subject under prevent the hypnotic pseudome- creation of hypnosis, he may but not induce or termi- mories.3 The New Jersey Supreme Court, nate the hypnotic state. Apparently, the following the of recommendations Dr. Mar- guidelines not require do that all communi- Orne, tin T. enumerated six prerequisites to cation subject between hypnotist and the of admission hypnotically refreshed rec- recorded but only the hypnotic that 4 session ollections: (1) the hypnotist must be a be recorded in its entirety. They apparent- qualified psychiatrist or psychologist who ly permit both the hypnotist the hypno- experience has in the use of hypnosis; (2) sis coordinator to receive unrecorded infor- the hypnotist “should” work independently, mation before meeting subject, the not as agent for either party to the litiga- they do not require that the subject’s pre- tion; (3) all information given to the hypno- hypnotic recollections be recorded.6 tist before the hypnosis session must be recorded; (4) before Differing the with hypnosis, approaches, both the subject Cali- must describe the facts to fornia hypnotist Supreme the Court as has found testimony he then them; remembers (5) all by prior enhanced hypnotism “contact” untrustworthy between hypnotist the subject and the must for legal purposes, hence inadmissible re- be recorded, on preferably videotape; gardless of procedures employed.7 On the (La. 1983). 425 So.2d Maryland 756 Armstrong, 255, Court 110 Wis.2d 329 N.W.2d 386 Appeals recently of repudiated Harding, (1983); the Miller, see also United States v. 411 precedent earliest admitting post-hypnotic for (2d Cir.1969) F.2d 825 (requiring prosecutors to Collins, testimony. State v. 670, 296 Md. 682 & notify defense counsel of enhance- 1, 1028, n. 464 A.2d (1983). 1034-35 n. 1 & People memory); ment of Hughes, witness’s v. 863, (1979) 99 Misc.2d (re- 417 N.Y.S.2d 643 Ruffra, Hypnotically Testimony: Induced quiring pretrial hearing suggestiveness on of Should It Be Admitted? 19 Crim.L.Bull. 293, hypnosis procedure). (1983). 298 Hurd, 4. State v. 525, 86 N.J. 432 A.2d 86 Compare Awkard, United States v. 597 F.2d (1981); Orne, see The Use Hyp and Misuse of (9th Cir.1979) 667 (post-hypnotic testimony ad Court, nosis in 27 Experi Inti. J. Clinical and trials) missible in criminal well as civil with Hypnosis 311, mental (1979). 335-36 Adams, United States v. (9th 581 F.2d 193 Cir.1978) (procedural safeguards must be em (1981). 5. Or.Rev.Stat. § 136.675 Hurd, ployed); State v. 525, 86 N.J. 432 A.2d 86 State, (1981); Brown v. (Fla.Dist. 426 So.2d 76 Compare Ault, Ct.App.1983); People Smrekar, FBI Guidelines v. Use of Ill.App.3d 68 Hypnosis, Experimental Int.J. Clinical and (1979); Ill.Dec. 385 N.E.2d 848 Hypnosis State, (1979) Pearson with 449-50 v. (Ind.1982); 441 N.E.2d 468 v, Beachum, State at 335-36. 97 N.M. 643 P.2d 246 (1981); People McDowell, v. 103 Misc.2d Long, (1980); Shirley, v. State N.Y.S.2d 181 31 Cal.3d Cal.Rptr. Wash.App. (1982); State P.2d 641 P.2d 775 the information all stores the brain ry: the California opinion, scientific of basis senses, forget- body’s aggravates by hypnotism received concluded court to retrieve memory. inability Proce- normal simply of unreliability ting is danger is a method may reduce the Hypnosis safeguards dural stored information.12 intentionally suggest might give to hypnotists difficulties eliminating retrieval facts, cannot but helpful recollection of to the stored access person hypnotized risks, that wit- example, eliminate other be- theorists Many memory information.13 between distinguish to nesses will be unable appears what lieve, contrary, that confabulation, in- memory and actual process a constructive actually is be recall data to logical the witness vention after an received information in order make facts supply unknown into the the mind integrated event is More- story hypnotically related complete.8 Ac- of that representation memory event.14 theoretically over, the court doubted be a view, appears to this what cording to could be administered adequate safeguards event itself recollection witness’s appeals hearings practice. Special up made composite fact be may in would employed procedures regarding recall, learned information original game that “the greatly escalate so re- events, suggestions and later earlier worth candle.”9 witness’s and the during hypnosis, ceived adopted court therefore The California missing details filling-in of unconscious of a that “the rule categorical logical or complete or story make the for the undergone hypnosis witness who has hypnotist perceived desires fulfill the memory of the restoring his of purpose actu- hypnosis else.15 Whether or someone to all is inadmissible as in issue events open remains an memory ally improves events, the to those relating matters among scientists.16 question session forward.”10 hypnotic time influ- hypnotically deciding to exclude would, however, defend- admit a The court York and Califor- the New testimony, enced im- testimony to “avoid posthypnotic ant’s gen- test of the applied courts appellate nia right of accused the fundamental an pairing community the acceptance by eral scientific his own behalf.”11 testify in of the District years ago by sixty set forth III. Frye United v. States.17 in Circuit Columbia however, terms test,” applies in “Frye The investiga- in criminal The use of hypnosis and expert opinion admissibility the theory memo- implicit on tion is based an 273, 67, Cal.Rptr. 317; at 641 4, 181 & 11. Orne, Kroger 31 at supra Cal.3d at note 8. See Douce’, Investigation, Hypnosis 27 805. P.2d at in Criminal 358, Hypnosis Experimental Int.J. Clinical and Diamond, (1979); in the 4, Inherent Problems supra 366 note at 321. 12. See Prospective Hypnosis Wit- on a Use of Pretrial 313, ness, (1980). au- 335 These 68 Cal.L.Rev. Eye- Putnam, Hypnosis and Distortions 13. hypnotists experienced agree even thors that Experi- Memory, 27 Int.J. Clinical witness prevent nor detect it confabulation can neither 437, (1979). Hypnosis, 439-^10 mental certainty. with Bartlett, Remembering generally 203- F. See 256, 39, Cal.Rptr. P.2d at 641 9. 31 Cal.3d at 181 Putnam, supra 05, (1964); see also 309-13 at 787. 4, 13, 437; Orne, supra note at 321 and at cited therein. authorities 272, 66-67, Cal.Rptr. 641 10. 31 181 at at Cal.3d Mena, 804; Ariz. 128 State v. P.2d at accord Diamond, generally, note 7. 15. See People (1981); Quintanar, v. 624 P.2d 1274 (Colo.App.1982); Commonwealth 659 P.2d 710 Putnam, supra note at 438. (1981); Nazarovitch, 436 A.2d 170 Pa. v. 496 1028 Collins, 464 A.2d Md. State v. 296 261, 267, Hughes, People 466 at v. N.Y.S.2d Gonzales, Mich.App. (1983); People 108 v. 490, 496; Shirley, Mack, v. 181 453 N.E.2d (1981); State 310 N.W.2d 306 applying Frye Cal.Rptr. at 641 P.2d at Hughes, 1980); People (Minn. N.W.2d States, 1013, App.D.C. 293 F. v. United 453 N.E.2d N.Y.2d 466 N.Y.S.2d (1923). case, however, The issue here is not the district court did not data.18 experimental hypnotist’s against po- of a value admissibility expressly weigh probative the observa- Admissibility made the tential was prejudice. tions or statements witness but instead the admissibili- based instead on a rule-of-law decision during hypnosis lay post-hypnotic testimony of a witness in a was admissible ty the normal, not, jury might credibility. state.19 We do there- the assess We waking fore, attempt ques- probative to decide the unresolved therefore examine whether hypnotically tion whether the Federal Rules of Evidence value of this influenced testi- Frye adopted mony outweighed by dangers abolished or test.20 silently confusion, prejudice, jury jury unfair or evaluation instead considers three Our misapprehension. first, precepts: princi- basic evidentiary subject’s is that a ple embodied in Federal 402 and 601 The scientific consensus Rules while are charac- hypnosis that “all relevant evidence is admissible” reactions under competent to be a even “every person by eager suggestibility terized witness,” explicit to certain nuances in the words or subject only slight hypnotist’s manner,21 second, distorting please rule desire to exceptions; jurisprudential that, admissibility, subject’s the trial and the later determining hypnotist,22 inability (a existing is wide rule based on to between memories judge’s distinguish discretion insight availa- exist- superior opportunity hypnosis pseudomemories before finally, limiting hypno- to trial on account of judges); ing hypnosis.23 ble may subject may rule that even evidence be tist’s influence on the be com- relevant we have pletely already excluded if value is substan- unintentional.24 As probative its mentioned, “the outweighed such factors as it is well-established addition tially subjects in confabu- danger prejudice, hypnotized engage of unfair confusion of issues, lation, jury.” supply Fed.R. the invention of details misleading unremembered events in order to make Evid. logical, and ac- complete, witness’s account can Post-hypnotic testimony obviously ceptable hypnotist. relevant, of Val- as Jackson’s identification state is it is The exact nature of the say dez shows. And we cannot It is a trance-like condition without value. In this not understood. always probative Williams, Rules); long way go cf. State v. 388 A.2d a in admit- Federal courts will “[W]hile 1978) (Frye incompatible (Me. ting expert testimony with state a 500 deduced from well-rec- Rules). “According discovery, ognized principle identical to Federal rules scientific reasoning, proposed thing is made must if the evidence from which the deduction to the gained gen- sufficiently requirements have and established to of Rules 401 meets acceptance particular judge power field in to fashion new eral in the the trial has no Frye, general- evidence, belongs.” exclusionary F. at 1014. See it ly 293 rules of and the testimo- Giannelli, Admissibility Ruffra, supra ny of Novel Scien- The note must be admissible.” Frye Saltsburg a tific Evidence: Century v. United States Half- n. 164. & Redden discuss at 319 Later, (1980). testimony expert-witness 1197 post-hypnotic Column.L.Rev. tes- as timony it will under Rule 702 if not excludable Note, Testimony Admissibility 19. See The of to a fact in the trier of fact determine assist by Hypnosis, Inñuenced 67 Va.L.Rev. treatise, According to this Federal issue. (1981). praises Ruffra the view Professor Frye test. Federal Rules did disturb testimony Frye post-hypnotic applies as to that 1982). (3d Evidence ed. Rules of Manual product technique ‘which can- the “end of the underlying, scien- not be disassociated from Putnam, supra E.g., note at 437. ” Ruffra, supra at 317. method.’ note tific apply a test de- to We nevertheless decline Comment, Hypnosis: A Primer for Admissi- signed pseudo-scientific manner data in a for bility, L.Rev. 51 Glendale incompetent lay witness that would render a testimony. give previously admissible Diamond, 333; Orne, supra E.g., note at 328-32; Douce’, Kroger supra & note Dorfman, F.Supp. 20. See United States supra at 366. controversy); (noting (N.D.Ill.1981) C. Graham, Practice Wright 22 Federal K.& repealed by cited note 23. (1978) (Frye 24. See authorities test Procedure § concerning by suppositions its a Scientists have ob- influenced by hypnotist. induced revelation of that, highly suscepti- hypnosis empirically process served by testimony was hypnosis is characterized subjects, ble fact that a witness’s (the function planning give it even may subsidence by hypnosis influenced initiative); redistribution subject eyes. loses jury’s in the credence greater can direct attention (the hypnotist attention the nature of concerning assumptions jury’s consciously availa- range the usual beyond hypnosis may accuracy and the memory reality subject); reduction ble its prejudicial so make the reality testing persistent for tolerance to overcome. impossible is weight distortion; role suggestibility; increased are based on the safeguards Procedural sug- a role (the subject adopt will behavior may that some reliable evidence assumption carry on com- gested by hypnotist But, Supreme as the California be elicited. role); to that plex corresponding activities observed, it is doubtful that safe- Court during the happened and amnesia for what properly and could be administered guards hypnotic state.25 becoming major issue prevented from memory hypnotic true Separating Moreover, trial. no safe- every at most impossible profession- pseudomemory Dr. all guards prevent can unreliability.30 even the sub- hypnosis als trained in pro- first set forth the Martin who It can be no less diffi- jects themselves.26 has stated that “no as- safeguards, posed legal cult traditional laymen employing prevent these can sub- pect safeguards opportu- that the proposition methods. The under confusing confabulation jects from hypno- nity previously to cross-examine the previous with actual hypnosis memory.”31 party the opposing tized witness will allow the inaccu- opportunity display adequate IV. dubious racy of his is rendered testimony27 case, only one we consider present In the the nature of influence. Once the identi- post-hypnotic testimony: kind of hypno- makes a recitation under witness known the witness person fication of sis, memo- supposed his confidence in that the witness suspicion, be under whom great- or invented —is ry genuine —whether identify unable to had nevertheless been then may The witness ly strengthened.28 government No being hypnotized. before subjective conviction have an unshakeable having identify witness could the witness stand gives his account on spot. Pass rest present Eagle been at the In- of absolute confidence. imprimatur that, if testify no one could important, More deed, trial, the witness’s re- in a criminal there, the fence into he were he had crossed violate the might sultant undue confidence located pasture where the site was right defendant’s constitutional confront agents where the law enforcement witnesses, for an and cross-examine adverse camouflaged hiding in their lying were accuracy of his absolute conviction in interviewed Valdez a place. When Jackson “impossible make it to cross- memory might later, of he had no recollection few weeks any meaningful in examine witness [the] more, before. After several jury may having be so seen Valdez What way.”29 1280; Menas, Kroger Experience Hypnosis F.2d at Hilgard, 28. State v. & 6-10 25. E. 7, 367; Diamond, 7, Douce’, Orne, supra supra Supra (1968), quoted note note at note at in 4, Diamond, 7, 332; supra suggestibility comparison note at 339. a at 316. For hypnotized non-hypnotized wit- witnesses Mack, 29. State v. 292 N.W.2d at 769. nesses, Putnam, supra see note 13. Diamond, Diamond, supra Orne, 17; supra, note at 332-42. supra, 30. note at note at 333-34. for Amicus in Affidavit Curiae Brief Opposition Rehearing See, Note, Awakening e.g., the Exclu- to Petition for Before 6-7, Supreme sionary Balancing Approach Court California A Trance: Shirley, Cal.Rptr. Admissibility Hypnotically Testi- Cal.3d Refreshed Ruffra, 726-29, (1982), quoted mony, 735-36 P.2d 775 61 Tex.L.Rev. at 294 n. 8. Valdez, with truck, interviews Jackson still could tention on the pre- Jackson him until identify undergoing hypnosis. sumably knew had been traced to Valdez. trial, was At there not word of corrobora- has authority One that inaccura- observed post-hypnotic tion of Jackson’s testimony.32 cy hypnotic recall increases with the Valdez had been as identified the principal number and detail of questions; least- suspect before was hypnotized. Jackson In distorted provided recollections are free by addition, Valdez had incurred per- Jackson’s all, narration.35 In nearly a ques- hundred sonal rancor'. This enmity surfaced during put addition, tions were In Jackson. hypnosis; immediately after his first refer- confusion of true pseudo- recollection and Valdez, said, ence to Jackson “The son of a memory may aggravated by sugges- bitch in the pasture comes .... The son of post-hypnotic tion that memory will be as a bitch is going walk over us.” Under vivid and detailed as experience.36 hypnotic these circumstances, confabulation alone suggestion This imparted also to Jack- provide would the likely bridge: person son. must have been Valdez.33 Supreme As the explained Court Man Moreover, the procedures employed dur- Brathwaite, son v. 102-114, 432 U.S. ing the hypnotic session were unduly sug- 2243, 2247-53, 140, 146-154 S.Ct. 53 L.Ed.2d gestive. every particular, In they were at (1977), process due a fair trial can be variance with safeguards required in by unduly denied suggestive identification Jersey New and Oregon. Several Texas procedures. Identification under such cir Rangers, agents, FBI and an Assistant U.S. cumstances, moreover, is potentially more Attorney were present in addition prejudicial probative. than principles These hypnotist. Questions were directed to Jack- require the exclusion an uncorroborated only son not profes- “mental health personal identification, only made after sional” hypnotized him, who but also an hypnosis, person of a clearly singled out for agent. FBI Both evidently had received suspicion. information about the being events investi- We do not per formulate a se rule of gated before the began. session During inadmissibility for cases not session, involving per questions additional were sonal case, identification. a particular proposed orally by yet another FBI agent in the evidence favoring admissibility might the room. Only agents some of the present probative make the value of the videotaped; were may whether others have outweigh prejudicial its adequate effect. If unintentionally suggested “recollections” procedural followed, safeguards cannot been be determined.34 have Because those present corroborated post-hypnotic testimony might did not record their knowledge and However, when, here, beliefs relative to be admissible. investigation, we can- hypnotized subject not examine what identifies for the first recollections could be attributable time a he person to their subtle cues. The has reason to know is most obviously suggestive question put already suspicion, to Jack- under the post-hypnotic son referred to the “significant” green testimony is proce whatever inadmissible white truck. An pre-induction safeguards elaborate dural were attempt used to discussion had at-, focused already Jackson’s the hypnotic sanitize session. Kroger distorting videotape & Douce’ infer from the 34. The soundtrack of the is inade- hypnotized subjects tendencies of pendent quate suggestiveness “inde- to assess the of these any corroberation information agents’ presence, hypnotized subjects are absolutely Supra obtained essential.” note [is] susceptible nonverbal cues as well as verbal 8, “[HJypnotically at 371. related evidence Douce’., Kroger supra 8, ones. See & note through independent must be validated careful 366. short, investigation sis is hypno- or it is In useless! designed modality a not to determine Orne, 4, supra 35. See note at 319-21. deception.” truth from Id Orne, 4, supra note analyzed at 320. Strikingly 36. as similar facts are a 4, study worst-case in at 319.

1204 right. protect a constitutional incompetent make failure to does not

Our decision criterion. We, therefore, the Rule 103 hypnotized. apply has Nu- a witness who been hypno- a permit previously merous courts factual previous shown in our As we have mat- testify about “those tized witness evidence there was considerable summary, to recall ters which he or she was able Jack- Ranger Valdez besides incriminating prior hypnosis.”37 guard To relate at the second testimony. Valdez was son’s in the against dangers procedure, inherent leaving the date set for site on mem- require pre-hypnotic these courts there; only person he was the whose money written, audiotaped, or ory preserved be in being was identified as at both vehicle allow cross-ex- videotaped They form. also sites; right palm print his was on the first testimony to counter expert amination and palm print note and his left extortion in the witness’s possibility changes note; 111 similar on the second there were certainty. sufficiently If a reliable method in first extor- improper capitalizations separate pre-hyp- exists for the witness to in exemplar, tion letter and in Valdez’s 93 pseudo- notic memory post-hypnotic the second extortion letter and its corre- memory, testimony may such be admissible. exemplar; and there were several sponding well as simi- misspellings identical some V. misspellings lar in the letters and the ex- that, government contends even if (For the second emplars. example, both error, admitted in of Val- identification exemplar letter and its “Vietnamese” is present purposes, dez was harmless. For addition, “Vietnamees”.) it was spelled we the error did not violate assume rights Valdez’s constitutional and do not shown that Valdez had a motive for the apply harmless-beyond-reasonable- Grocery an of the HEB employee crime: as test,38 guided but are instead doubt he Company, poor perform- had received demanding less test in Federal Rule of Evi- 1980, and his rating ance November 103, provides, “Error may dence postponed scheduled raise had been predicated upon ruling which admits or ninety days; when he refused a transfer right excludes evidence unless a substantial store, an outsider was hired for another ” party Relying is affected ... . on training, step and Valdez was forced to 103, Rule we have refused to reverse a man in depart- down as number two his admitting conviction unless an error in evi- explanation ment. Valdez offered the dence is shown to have exerted a substan- raises of all been sus- employees had impact tial on the verdict.39 of our Some losses, pended because of when in fact applied decisions have the harmless error pay only employee increase of one other weighing test in the effect of an error in was delayed. but this admitting testimony,40 ruling was did, hand, receive a on the other inadvertent, and did not take into account Grocery Company raise from HEB Feb- the difference between a trial court’s fail- 1981; ruary regular ure an rule and its he was a visitor to evidentiary to observe California, 18, Court, Chapman Superior 132 v. 386 U.S. 87 S.Ct. 37.State ex rel. Collins v. 180, 1266, 1295; 824, 17 L.Ed.2d 705 Ariz. 644 P.2d accord 710, Quintanar, (CoIo.App. v. 659 P.2d 713 380, Cain, E.g., United States v. 615 F.2d 382 State, 579, 1982); 272 Ind. 400 Merrifieid v. (5th 1980) (hearsay error); United States v. Cir. Wren, 146, (1980); 425 N.E.2d 149 State v. Gomez, 412, Cir.1976) (5th 529 F.2d 417 Wallach, 756, (La. 1983); People v. So.2d 758 (same). 387, 37, Mich.App. 404-05 110 312 N.W.2d Koehler, 108, (1981); 110 State v. 312 N.W.2d Martinez, E.g., F.2d United States v. 588 682, Beachum, (Minn.1981); State v. 97 N.M. 495, (5th 1979) (hearsay error); 499 Cir. United 246, (1981); People Hughes, 59 643 P.2d 252 Cook, (5th States v. F.2d Cir. 267-68, N.Y.2d 466 N.Y.S.2d 1977) (erroneous more admission evidence (1983); N.E.2d 496-497 Commonwealth prejudicial potentially probative); than United Taylor, Pa.Super. A.2d Turquitt, (5th States v. 557 F.2d Cir. Glebock, (1982); 1977) (erroneous State v. 616 S.W.2d admission of evidence of an (Tenn.Crim. App. 1981). crime). other site; drop ranch near the second he regular- the conviction. In view of the conclusion ly went to the Eagle Pass Flea Market on reached, we have we ques- do not discuss the Sundays; stipulated Government that tions raised concerning jury the charge. the handwriting on the extortion letters reasons, For these judgment the of con- envelopes was disguised and could not viction is REVERSED. case is RE- Valdez; be identified as belonging MANDED for proceedings further not in- writing style exemplars Valdez’s dif- consistent with opinion. this fered from that on the letters and en- velopes; the Government could not deter- JOLLY, E.

mine whether GRADY they Judge, were written a Circuit con- by left- or right-handed person curring in part or the same per- dissenting part: son different people; many prints other I fully concur in the well researched and than Valdez’s were found on both letters II, III, reasoned analysis of Parts and IV of identified; were and the only agent opinion. I respectfully dissent, how- other than Jackson at the drop first site ever, V, from the of Part holding conclusion could not identify Valdez. that the admission of the hypnotically en- Jackson’s testimony that Valdez not only hanced testimony a affected substantial stopped area, at the rest but also crossed right of the defendant. the fence into the pasture, approached the Because there overwhelming was inde- site, drop appeared very close to the agents’ pendent evidence against Valdez and be- camouflaged hiding place, suddenly veered cause the enhanced identifica- hypnotically as if he off had seen agents, and disap- tion testimony was insignificant when com- peared into the brush as if to sneak away pared to the other guilt, evidence of I would Indeed, certainly persuasive. was despite hold the admissibility of this testimony available, other evidence all of which is did not affect right substantial above, summarized went Government defendant; indeed, I would hold that the great lengths to identification, secure this testimony was beyond harmless a reasona- enlisting a hypnotist, an FBI examiner- ble doubt. agent, operator, camera and numerous' others who attended the session. The evidence clearly showed that Valdez The Government evidently thought the tes- had the necessary motive commit the timony useful in its efforts to obtain a crime with which is, he was charged, conviction. hostility toward his employer for criticism of his work and of a pay denial increase.

The district concluded judge after Valdez being admitted to at the that, drop first trial even with the hypnotically site. He was also at the second site. testimony, induced the evidence was insuf palm print ficient to return the His was guilty verdict. Our found on the first extor- opinion reversing this judgment palm relied on tion note. His was on print found Ranger Jackson’s testimony. United States second extortion note. There were more Valdez, (5th Cir.1982). 685 F.2d 1384 We than 204 similarities the handwrit- between therefore, say, cannot now that the Govern ing on the two extortion notes and Valdez’s result, wasted, ment’s effort was handwriting exemplars. Additionally, patently would have been the same without being without shown the extortion notes by identification, Ranger Jackson’s and that officers, the investigating apparent- Valdez was not harmed that identifica ly knew kind of papér the notes had tion and the testimony concerning his al been written on. Surely the majority leged activities at the site. first should be able to recognize that these links in the chain of evidence cannot be explained us, Our review of record satisfies coincidence; indeed, as mere however, any reason- as it of this panel satisfied able minded jury evidence, such court that unex- reversed a directed verdict of here, as it acquittal plained would in an that the unreported opinion, conclusive proof culpability. evidence to sustain admitted was sufficient overwhelming with this compared When guilt, hypnotically

weight of evidence significance no

enhanced is of en-

importance. only hypnotically of Valdez identity

hanced evidence was site, where he later admit- the first this

ted he was. The elimination of testi- suspiciously that Valdez acted at the

mony any strength

first site does not add innocence, or, words,

a claim of in different

does not. create a basis for a reasonable short, guilt.

doubt of it was harmless.

I judgment would therefore affirm the

the district court. McGEE, Jr., Petitioner-Appellant,

Prado ESTELLE, Jr., Director,

W.J. Texas Corrections,

Department

Respondent-Appellee.

No. 81-1498. of Appeals,

United States Court

Fifth Circuit.

Jan.

Case Details

Case Name: United States v. Joe Corona Valdez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 3, 1984

Citation: 722 F.2d 1196

Docket Number: 82-1700

Court Abbreviation: 5th Cir.