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United States v. Edwardo-Franco

November 17, 1989

UNITED STATES OF AMERICA, APPELLEE,
v.
LUIS EDWARDO-FRANCO, ROCIO GALLEGO, A/K/A "MARIELA FLOREZ", JORGE LOPEZ AND SERGIO CASTRO-MUNOZ, DEFENDANTS-APPELLANTS



Original Opinion Reported at,

Present: HON. JAMES L. OAKES, Chief Judge, HON. ELLSWORTH A. VAN GRAAFEILAND, HON. GEORGE C. PRATT, Circuit Judges,

A petition for a rehearing having been filed herein by appellee United States of America,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

Per Curiam:

The Government's petition for rehearing simply reiterates the arguments made in its brief on appeal. The exclusion of the testimony of Edwardo-Franco's former landlady on the basis that "[s]he can't be a corroborative witness," United States v. Edwardo-Franco, Nos. 88-1395, slip op. at 5316-17 (2d Cir. Aug. 29, 1989), coupled with the preclusion of Edwardo-Franco's testimony as to background information about himself and about the inducements to him to move into the Birchwood Park Drive house, id. at 5317-18, would alone have warranted a reversal of his and Gallego's conviction. When coupled with the other questionable rulings commented upon in our initial opinion, especially in light of the remarks made at sentencing, it is readily apparent that a retrial in the interest of justice is necessary. We stand on the points made in the panel opinion as to Castro-Munoz and Lopez.

As Justice Jackson once wrote, "There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers." Krulewitch v. United States, 336 U.S. 440, 457 (1949) (Jackson, J., concurring). This is especially true where the conviction is for a narcotics violation at a time when the country is engaged in a "war on drugs." However, a courtroom is not the proper place in which to fight such a "war." A defendant charged with a narcotics violation is presumed like every other defendant to be innocent until proven guilty beyond a reasonable doubt after a fair trial.

19891117

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