Appeal from judgment of conviction in the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, sentencing the defendant to five years imprisonment "plus a special parole term of 25 years, unsupervised, on condition that [he] leave the country upon his release from prison and not return during such special parole term." The judgment is affirmed and the case remanded for resentencing.
Before Meskill, Circuit Judge, and Dumbauld*fn* and Port,*fn** District Judges.
Jesus Hernandez appeals from a judgment of the United States District Court for the Eastern District of New York entered March 10, 1978, after a jury trial before Thomas C. Platt, Judge, convicting him of importing cocaine in violation of 21 U.S.C. § 952(a) and § 960(a)(1) (count one), and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (count two). Appellant was sentenced concurrently on each count to five years imprisonment "plus a special parole term of 25 years, unsupervised, on condition that (he) leave the country upon his release from prison and not return during such special parole term." Minutes of Sentencing at 12.
Basing his claim on an allegedly erroneous evidentiary ruling and on an isolated statement in the charge, appellant seeks a reversal of the judgment of conviction. Alternatively, asserting the condition of parole to be improper, he asks that the case be remanded for resentencing. We disagree with his attack on the conviction, but agree that the case should be remanded for resentencing.
An abridged version of the facts will suffice for a consideration of the points raised by appellant.
Appellant Hernandez worked as a steward aboard flights for Colombia's national airline, Avianca. On December 16, 1977, Avianca granted appellant's request for an assignment aboard a flight to New York, and advised him to prepare for departure from Bogota the next day. For this trip appellant purchased a white suitcase costing approximately $40 (1350 pesos). He filled it with personal belongings, and on the morning of the flight he deposited the locked suitcase on the special luggage cart for Avianca crew members bound to New York. Upon arrival in New York, appellant retrieved the suitcase from the baggage carrousel and proceeded through Customs. During the customs routine check, a ripple in the lining aroused suspicion. The customs inspector inserted a probe into the lining, and when he extracted it, found a white substance on the tip. A field test confirmed the nature of the substance: cocaine.
Customs inspectors and appellant proceeded to a special search room where the examination continued. While awaiting the arrival of a special agent from the Drug Enforcement Administration, one of the inspectors managed to dislodge from the lining of the suitcase two clear plastic envelopes full of cocaine. Subsequent analysis estimated its value at $10,000 in Colombia and $130,000 in the United States.
When the special agent arrived, he placed appellant under arrest and informed him of his constitutional rights. Appellant waived his right to remain silent. During the ensuing interrogation appellant confessed that his recent divorce had brought upon him "financial problems and . . . a lot of debts." Record, January 16: 82-83.
The question of appellant's financial problems came up again at trial. Evidence revealed that (1) appellant's employment with Avianca Airlines had lasted for 8 1/2 years, (2) appellant earned 10,000 pesos per month, or approximately $350, and (3) appellant owed 6,000 pesos ($210) in monthly alimony to his wife, and 38,000 pesos ($1,071) to others. On cross-examination the prosecutor, over defense objection, was permitted to ask "(Isn't) it a fact you're a desperate man, deeply in debt?" Record, January 17: 66. Appellant denied it, asserting that terms for the repayment of his debts had been arranged. The prosecution also referred to appellant's financial condition on summation.
The claim of reversible error in the charge is bottomed on the following part of Judge Platt's statement regarding credibility of appellant's testimony:
A defendant who wishes to testify is a competent witness. And the defendant's testimony is to be judged in the same way as that of any other witness. The law permits a defendant, at his own request, to testify in his own behalf.
Now, the testimony of an individual defendant is before you. You must determine how far it is credible. The deep personal interest which every defendant has in the result of his case should be considered in determining the credibility of his testimony.
You are instructed that interest creates a motive for false testimony; that the greater the interest, the stronger is the temptation. The interest of a defendant is that of a character possessed by no other witness and, therefore, ...