Vasquez v. United States

Decision Date15 May 1961
Docket NumberNo. 17032.,17032.
PartiesJoe VASQUEZ and Joe Garcia Verduzco, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas F. Doyle, San Francisco, Cal., for appellants.

Laurence E. Dayton, U. S. Atty., and John Kaplan, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

Joe Vasquez and Joe Garcia Verduzco were jointly tried and convicted under a one-count indictment charging the sale and facilitation of the sale and transportation of nine grains of heroin in violation of 21 U.S.C.A. § 174. Appealing to this court, they argue that the trial court erred in denying their motion for acquittal and in failing to give a requested instruction.

The evidence shows that William Wong, an agent of the Federal Bureau of Narcotics, approached one Nanette Brugh and asked her to obtain some narcotics for him. He gave her for this purpose four hundred dollars in government funds. Miss Brugh contacted appellants and made arrangements for them to purchase some heroin for her. She gave them the four hundred dollars to use in purchasing the narcotics and told them she would give them some of the heroin in exchange for their assistance.

Appellants obtained the heroin and took it to a motel room which they and Miss Brugh had rented. She then made arrangements to meet Wong and one Frank Gugino who turned out to be a special employee of the Bureau. Appellants drove her to the rendezvous. Miss Brugh had the narcotics with her at that time but concealed them in a car lot before she met the agents. She then met Wong and Gugino and took them to the car lot where she picked up the package of narcotics and gave it to the agents. There is no evidence as to where appellants obtained the narcotics.

Arguing from these facts that they were purchasers and not sellers, appellants contend that they could not be convicted of the sale or of facilitating the sale and transportation of the heroin.

United States v. Prince, 3 Cir., 264 F. 2d 850, is cited by appellants in support of this position. In Prince it was held that a defendant who acted in the same capacity as these appellants could not be found guilty of selling and facilitating the concealment and sale of narcotic drugs in violation of 21 U.S.C.A. § 174.

The instant indictment charged that appellants "did fraudulently and knowingly sell and facilitate the sale and transportation of approximately 9 grains of heroin * * *." Three separate offenses were thus charged, all relating to the same transaction — the sale of narcotics, facilitation of the sale of narcotics, and facilitation of the transportation of narcotics. This is proper under 21 U.S.C.A. § 174. Torres Martinez v. United States, 1 Cir., 220 F.2d 740, 742-743.

Since appellants were shown to be procuring agents of a purchaser, Miss Brugh, but were not shown to have sold narcotics to her or to have been associated with a seller, the verdicts of guilty cannot rest upon the charge of selling narcotics.

Neither could the verdicts under these circumstances rest on the charge of facilitating the sale, if the holding of Prince is to be followed. The Government questions the correctness of that decision, pointing out that the two decisions apparently relied upon as authority for the holding dealt exclusively with the question of sale, no question of facilitating sale being involved.1 For the reasons indicated below, however, it is not necessary for us to decide whether we agree with Prince.

The case before us involves a charge of facilitating the transportation of narcotics. No such charge was made in the Prince indictment. Hence the court in that case was not called upon to decide whether one who delivers narcotics to a purchaser, while acting only as the latter's procuring agent, can be convicted of facilitating the transportation of narcotics.

It is possible to argue that while Prince did not deal specifically with facilitation of transportation, the rationale of its decision pertaining to the facilitation of the sale and concealment of narcotics applies equally with regard to transportation. However, Prince contains no statement of the rationale upon which the court's decision on this point was based. The court stated only that "the requested instruction was proper" 264 F.2d at 853 and cited cases which dealt only with sale. Under these circumstances we will not speculate as to what the rationale may have been and will not give that decision application beyond the point actually decided.

One may be convicted of transporting or facilitating the transportation of narcotics without having committed the act of selling. Torres Martinez v. United States, supra, 220 F.2d at 743. Here it was not necessary for the Government to prove actual transportation since appellants were only charged with facilitating transportation. The word "facilitate" as used in section 174 means "to make easy or less difficult," "to free from difficulty or impediment," "as to facilitate the execution of a task." Bruno v. United States, 9 Cir., 259 F.2d 8, 10.

There is substantial evidence showing that appellants actually transported heroin from the place where they acquired it to the motel which they and Miss Brugh had rented. They then drove Miss Brugh from the motel to her rendezvous with the agents at a time when she had the narcotics in her possession. Since the...

To continue reading

Request your trial
22 cases
  • Vaccaro v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1972
    ...159 F.2d 659; Helms v. United States, 5 Cir., 1964, 340 F.2d 15; Estes v. United States, 5 Cir., 1964, 335 F.2d 609; Vasquez v. United States, 9 Cir., 1961, 290 F.2d 897; Bradford v. United States, 9 Cir., 1959, 271 F.2d 58; United States v. Owens, 2 Cir., 1959, 263 F.2d 720. See cases cite......
  • People v. Cattaneo
    • United States
    • California Court of Appeals
    • February 20, 1990
    ...been called the "procuring agent" defense. (Lewis v. United States (1964) 119 U.S.App.D.C. 145, 337 F.2d 541, 543; Vasquez v. United States (9th Cir.1961) 290 F.2d 897, 898.) This defense arose where the defendant purportedly could not be found to have acted as an exclusive agent of the buy......
  • People v. Roche
    • United States
    • New York Court of Appeals
    • June 15, 1978
    ...no funds of his own in making a purchase for another may militate against a finding that he is a principal (see Vasquez v. United States, 9 Cir., 290 F.2d 897, 898). Though evidence that he was simply doing a favor for a friend may also suggest an agency, he still may be found to have parti......
  • Miranda v. Anchondo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 6, 2012
    ...(9th Cir.1962) (“It is settled that the same act or transaction may constitute two distinct federal offenses....”); Vasquez v. United States, 290 F.2d 897, 898 (9th Cir.1961) (“Three separate offenses were ... charged, all relating to the same transaction—the sale of narcotics, facilitation......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT