Medrano v. United States

• Decision Date: 08 February 1961
• Docket Number: No. 16864.,16864.
• Citation: 285 F.2d 23
• Parties: Juan Jose MEDRANO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

285 F.2d 23 (1960)

Juan Jose MEDRANO, Appellant, v. UNITED STATES of America, Appellee.

No. 16864.

United States Court of Appeals Ninth Circuit.

December 13, 1960.

Rehearing Denied February 8, 1961.

Morris Lavine, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Minoru Inadomi, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and LING, District Judge.

LING, District Judge.

Appellant and two others, Mario Lopez Covarrubias and Frank Garcia Alva were indicted in a five count indictment for violating 21 U.S.C.A. § 174. Appellant was found guilty on all counts.

We adopt appellee's statement of facts: Special Employee Edward Ferris approached codefendant Mario Lopez Covarrubias, whom he had known for two years, on November 11, 1959, in quest of narcotics. Covarrubias stated that the narcotics could be obtained from Appellant, so the two went to Gracie's Cafe, 700 block East First Street, Los Angeles, in search of Appellant. On a prior occasion Ferris, who had been addicted to heroin, had obtained narcotics from Appellant through the aid of Covarrubias at this same place. However, on November 11, 1959, Appellant could not be located on this initial attempt and the subsequent meeting had to be arranged for that night. During the interim, Special Employee Ferris met with narcotic agents, who searched him, provided him with $150.00 in Government funds and equipped him with a "fargo" device.¹

That night, Ferris drove to the home of codefendant Covarrubias in South San Gabriel, whereupon Covarrubias and Ferris proceeded to Gracie's where they inquired of Appellant. Having received a negative reply, Covarrubias and Ferris left Gracie's and went to a leather shop, located on Brooklyn Avenue where they asked for Appellant's phone number. Since Appellant could not be contacted here, Covarrubias and Ferris returned to Gracie's where the bartender informed them that Appellant had called and would be there in a few minutes.

Appellant arrived at Gracie's in an Oldsmobile, license number PBU 209. After an initial greeting, Appellant sat down in the back part of the establishment. Codefendant Covarrubias went over to Appellant and conversed for a few minutes. Upon his return, Covarrubias stated to Ferris that the price for 14 grams of heroin would be $125.00. Covarrubias and Ferris stepped out and sat in Ferris' car. At this time Covarrubias asked Ferris for the money but the latter refused. Covarrubias re-entered Gracie's, followed by Ferris a few minutes later.

Upon entering, Ferris walked over to Appellant and said, "Here it is, the money, the $125.00," giving the sum to Appellant. Appellant said, "Wait" and then proceeded to make a phone call. When finished with the call he sat down for a few minutes, at which time the phone rang and the bartender said, "Johnny, it's for you". At the conclusion of this phone call, Appellant advised Ferris that the heroin was in a phone booth at a gas station located at the corner of Forrest and Brooklyn. In reply to a query by Ferris as to where Forrest was, Appellant replied that it was one block west of Evergreen.

Covarrubias and Ferris left Gracie's in Ferris' auto and drove to the gas station located on the corner of Forrest and Brooklyn, where Ferris alighted from the vehicle and walked to the phone booth. There he retrieved a small packet from underneath a shelf. Subsequently, after taking Covarrubias home, Ferris met with the narcotic agents and turned over the small packet. The agents weighed and sealed the packet with its contents and mailed it to the chemist. The chemist William J. Gowans testified the substance was heroin.

Appellant readily admitted his presence at Gracie's on November 11, 1959, but denied any knowledge or dealings in narcotics at that time.

Two days later on November 13, 1959, while Special Employee Ferris was visiting Gracie's, Appellant asked how the heroin was that Ferris had received a few days previously.

Ferris saw Appellant in Gracie's on November 24, 1959, and asked for one ounce of heroin, but since his supply was low, Appellant stated that he would have to wait until the next day.

However, the next transaction with Appellant did not occur until November 29, 1959. On this date, Ferris again went to Gracie's in the morning where he asked Appellant for an ounce of heroin and arrangements were made for a meeting that night at Gracie's. Ferris then met with narcotic agents who searched him, provided him with $300.00 Government money, and installed the "fargo" device upon him.

The night of November 29, 1959, as Special Employee Edward Ferris approached the now well-known bistro, Appellant's Oldsmobile, PBU 209, was observed parked in front of Gracie's. As Ferris entered, he greeted codefendant Frank Garcia Alva, whom he had known since 1946, with "Hi, Poncho, what are you doing?" Upon observing Appellant in the back of the room, Ferris beckoned him as he walked toward the restroom. Moments later Appellant met Ferris in the restroom, at which time Ferris asked for an ounce of heroin. Appellant stated, "It will be $280.00 an ounce." Appellant stated, "Its going to be the price from now on because it is good stuff." Ferris counted $280.00 of the Government's funds and gave it to Appellant. Appellant then stated to Ferris "Wait outside for Poncho." Ferris returned to the bar and observed codefendant Frank Garcia Alva conversing with Appellant. Alva then told Ferris to go out to his car and wait.

Ferris and Alva departed from Gracie's, got into Alva's vehicle, and drove to a location near Fifth and San Julian Streets. At this place, Alva went inside a rooming house or hotel, and upon returning approximately twenty to thirty minutes later, handed Ferris a white envelope. The pair then drove to Alva's home, subsequently returning to Gracie's. Special Employee Ferris turned over the white envelope to the agents. The substance was mailed to the chemist who testified during trial that it contained heroin.

Appellant testified that on the date of the second transaction, occurring on November 29, 1959, he was at home at all times and not in the vicinity of Gracie's nor had he any dealings in narcotics with anyone.

Appellant has assigned numerous errors of the trial court for this appeal. These may be summarized as follows: (1) denial of request for bill of particulars; (2) admissibility of evidence; (3) misconduct on the part of the prosecuting attorney; (4) entrapment; (5) instructions to the jury; (6) sufficiency of the evidence to support the verdict; (7) disqualification of trial judge.

Appellant's motion for a bill of particulars was granted in part and denied in part. Appellant now urges that he was entitled to information as to "who was present at the time and place alleged; the name and address of each and every person who was allegedly present at the time of the alleged transaction which allegedly occurred on or about November 11, 1959,...