Diaz-Rosendo v. United States

• Decision Date: 25 February 1966
• Docket Number: No. 19765.,19765.
• Parties: Alejandrino DIAZ-ROSENDO and Felix Anenson Fernandez, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

357 F.2d 124 (1966)

Alejandrino DIAZ-ROSENDO and Felix Anenson Fernandez, Appellants, v. UNITED STATES of America, Appellee.

No. 19765.

United States Court of Appeals Ninth Circuit.

February 25, 1966.

COPYRIGHT MATERIAL OMITTED

William B. Osborne, Los Angeles, Cal., for Diaz-Rosendo.

David C. Marcus, Los Angeles, Cal., for Anenson Fernandez.

Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty. Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.

JERTBERG, Circuit Judge:

Following trial to a jury the appellants, Alejandrino Diaz-Rosendo and Felix Anenson Fernandez, hereinafter Diaz and Fernandez, respectively, were convicted of offenses hereinafter described.

The District Court had jurisdiction under 18 U.S.C. §§ 2 and 3231, and 21 U.S.C. § 176a. This court has jurisdiction under 28 U.S.C. §§ 1291 and 1294.

Count One of the indictment charged that Diaz, Fernandez, one Antonio Contreras-Zumaya, hereinafter Contreras, and other persons to the grand jury unknown, conspired to import and bring into the United States from Mexico, marijuana, without presenting said marijuana for inspection and without entering and declaring said marijuana as required by 19 U.S.C. §§ 1459, 1461, 1484 and 1485, and to conceal, transport and facilitate the concealment and transportation of marijuana which had been imported into the United States contrary to the law, being in violation of 21 U.S.C. § 176a. This count contains two overt acts: (1) on March 10, 1964, Contreras drove an automobile containing approximately 204 pounds of marijuana; and (2) on or about March 10, 1964, Fernandez purchased an automobile tire for a 1953 Buick automobile.

Count Two charged that Contreras, with intent to defraud the United States, smuggled into the United States from Mexico, marijuana which should have been invoiced, and knowingly imported said marijuana contrary to law, and Diaz and Fernandez knowingly aided, abetted, counseled, and procured the commission of said offense.

Prior to trial Diaz, Fernandez and Contreras filed a motion to suppress evidence consisting of 204 pounds of marijuana taken and seized from the motor vehicle being operated by and under the control and in the possession of Contreras, and a piece of paper taken from the person of Contreras, given to him by one Becerra, hereinafter mentioned, on the ground that said evidence was taken and seized without probable cause and without a search warrant or a warrant of arrest. Contreras withdrew his motion to suppress prior to the court hearing. Following hearing by the court, the motion was denied as to Diaz and Fernandez. The charges against Contreras were severed from the charges against appellants and the trial proceeded only as to appellants.

At the jury trial Contreras testified as a witness on behalf of the Government. Appellants presented no witnesses on their behalf.

Each appellant was committed to the custody of the Attorney General for a period of ten years on each count, the sentences to run concurrently. The record does not reveal the disposition of the case against Contreras except the statement by one of the counsel for appellants, made at the time of their sentencing, that Contreras pleaded guilty to a tax count and was granted probation.

That part of 21 U.S.C. § 176a reading as follows:

"Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury."

was not imparted to the jury by the district judge in the course of his instructions to the jury, or in any other manner.

Appellants specify that the District Court erred: (a) in refusing to grant their motion to suppress evidence; and (b) in refusing to grant judgment of acquittal on each of the two counts on the ground that the evidence under each count was insufficient to sustain a conviction.

Appellants further contend that Count One unlawfully charges two conspiracies, or a conspiracy within a conspiracy in that the count charges a conspiracy to smuggle marijuana into the United States from Mexico, and to conceal and transport the same after the same had been smuggled into the United States.

The following summary of the facts is taken largely from appellee's brief which, from our study of the record, we believe to be a fair statement:

In March 1964 one Patricio Becerra had a conversation with Contreras in Mexico. Becerra offered Contreras $150 to take a car to Los Angeles. During the conversation, which took place in Tijuana, Baja California, Becerra gave Contreras a piece of paper with a telephone number (DU 5-3988), a name (Rene Aspuro), and the term, "Cuorto 114". "Cuarto" in Spanish means "room". It strongly appears from the evidence that all of the material on the piece of paper except the word "cuorto" was written by Diaz.

Becerra instructed Contreras to call the telephone number upon his arrival in Los Angeles. Becerra delivered a 1953 Buick to Contreras. That night Contreras drove it into the United States from Mexico, crossing at San Ysidro. He was waved ahead at the port of entry and headed for Los Angeles. The vehicle contained approximately 204 pounds of marijuana, which had a sales value of from $2721 to $5442 in Tijuana, Mexico.

During the trip there was a puncture in a tire. Contreras replaced the tire but had to do so with the lights on. The battery ran down, and the car wouldn't start. Contreras got a ride to Los Angeles, where he called the telephone number DU 5-3988. He told the person at DU 5-3988 that the room number was 114.

DU 5-3988 was the telephone number of the Parkway Motel in Los Angeles. On March 7, 1964, three men had arrived at the Parkway Motel in a taxi and obtained Room 114. Two of these men were appellants Diaz and Fernandez. Appellants came in to register while the third man remained outside of the office. One of the two appellants signed the only name which was provided. This was the name, "Rene Aspuro." The motel owner could not remember which of the two appellants signed the Aspuro name. It strongly appears from the evidence that the signature was not that of Diaz.

When one of the three men called for a taxi, he said his name was "Fernandez," so the manager's wife added the Fernandez name to the registration card.

The motel manager later noted that a Ford automobile was connected with Room 114. It had a California license number of OCB-795.

The call by Contreras to Rene Aspuro in Room 114 occurred on the night of March 9-10, 1964, two days after appellants registered there under the Rene Aspuro name. Contreras was told that the person who came to the telephone was "Rene Aspuro." Contreras said that the car could not proceed, due to battery trouble, and had been left on the highway. The Rene Aspuro voice asked where he was and Contreras said he was at a cafe on Broadway, giving the directions. He waited for them at the cafe. The motel manager testified that on the night of March 9-10 a telephone call came in for Room 114 and was answered at that room. Shortly afterwards two men from Room 114 left in the Ford. They were appellants. They never returned. The third person checked out on the morning of March 11.

Appellants met Contreras at the cafe. He had told them that he would be wearing a black jacket. They got into a Ford and headed for the car that had the battery trouble. Appellant Fernandez was driving.

They reached the Buick, started it by pushing it, and drove to a service station at San Onofre, about 3½ or 4 miles south of San Clemente. At the service station appellant Fernandez told the station employee that he wanted the battery of the Buick charged. A tire also was purchased, and Fernandez paid the total bill, about $8.00, giving a tip of $1.00 more. Fernandez, Diaz, and Contreras worked together in changing the tire.

After the bill was paid, the three men looked at the flashing lights on a highway overpass and had a conversation. When the lights are flashing, the Immigration checkpoint one mile north of San Onofre is in operation. When the lights are not flashing, the checkpoint is not in operation.

Because he saw the flashing lights, Contreras decided to head for San Diego. Such a change of course would involve taking the Highway 101 off-ramp to Basilone Road, making a U-turn to the left on Basilone Road, going west on the Basilone overhead over Highway 101, and turning south to return to the freeway. The overhead is about six-tenths of a mile south of the Immigration checkpoint, which is 71 miles from the border between the United States and Mexico.

At that time Richard E. Dick, who was an Immigration Patrol Inspector as well as a Customs Patrol Inspector, was assigned to the traffic check at the Immigration checkpoint. Inspector Dick observed the 1953 Buick driven by Contreras. It was traveling west on the Basilone overhead in the company of a Ford which was occupied by appellants Diaz and Fernandez. The Buick and Ford were "very close together" with the Buick in front. They were taking a direction that would necessarily lead south on Highway 101.

In the past there had been a number of cases in which drivers of vehicles had utilized the Basilone overhead "turnaround" to head back to the south on the freeway to avoid the Immigration checkpoint.

Basilone Road went to a military camp and to no other point. The incident in question occurred at about 5:15 a. m. The military base allowed no visitors between 2 a. m. and 6 a. m. Military base stickers are placed on the bumpers of appropriate vehicles. Neither the Buick nor the Ford had a base sticker. Inspector Dick was aware of these facts before he...