441 F.2d 821 (5th Cir. 1971), 29505, United States v. Warner

Docket Nº:29505.
Citation:441 F.2d 821
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Craig WARNER, April Covey, Samuel L. Kranzthor, Fred W. Daniels, Jr., FriedaE. Edwards, Frank Daniels and Michael A. Jacobson, Defendants-Appellants.
Case Date:April 08, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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441 F.2d 821 (5th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,

v.

Craig WARNER, April Covey, Samuel L. Kranzthor, Fred W. Daniels, Jr., FriedaE. Edwards, Frank Daniels and Michael A. Jacobson, Defendants-Appellants.

No. 29505.

United States Court of Appeals, Fifth Circuit.

April 8, 1971

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[Copyrighted Material Omitted]

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Lee A. Chagra, El Paso, Tex., for defendants-appellants; Mari W. Privette, Las Cruces, N.M., of counsel.

Seagal V. Wheatley, U.S. Atty., Wayne F. Speck Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before WISDOM, THORNBERRY, and DYER, Circuit Judges.

WISDOM, Circuit Judge:

The defendants-appellants-- samuel L. Kranzthor, Fred W. Daniels, Jr., Frieda E. Edwards, Frank Daniels, Michael A. Jacobson, Craig R. Warner, and April L. Covey-- were charged with having conspired knowingly and with intent to defraud the United States to import marihuana into the United States contrary to law, in violation of 21 U.S.C. 176a. 1 Three other persons were also named in the indictment: Richard C. Semple, III, Michael G. Young, and Rodolfo Vasquez. 2 Semple was never apprehended

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and remains a fugitive. The other nine defendants pleaded not guilty and stood trial by jury. At the close of all the evidence the district court granted Young's motion for judgment of acquittal. The jury acquitted Vasquez but convicted the other seven defendants. Kranzthor was also convicted of the substantive offense of knowingly importing marihuana into the United States contrary to law. 3 The district court sentenced Kranzthor to serve two concurrent ten-year terms in a federal penitentiary. The court sentenced Frank Daniels

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under the Youth Corrections Act, 18 U.S.C. 5005 et seq. The remaining five defendants were sentenced to serve six-year terms in a federal penitentiary.

On appeal to this Court four points of error are raised. (1) All of the appellants contend that the district court erred in denying their motions for judgment of acquittal, because the evidence was insufficient to sustain their convictions for conspiracy. (2) Kranzthor contends that the court erred in denying his motion for judgment of acquittal, because the evidence was insufficient to sustain his conviction for the substantive offense. (3) All of the appellants contend that the court erred in admitting the evidence taken from them and their vehicles, because-- so they argue-- their arrests and the searches of their vehicles were without a warrant or probable cause. (4) The appellants' final contention is that the statute under which they were charged, 21 U.S.C. 176a, is unconstitutional, because it violates the Fifth Amendment privilege against self-incrimination. We conclude that the judgment of the district court must be affirmed.

I.

The first two contentions are that the Government's evidence is insufficient to support the defendants' convictions for conspiracy and Kranzthor's conviction for the substantive offense of illegal importation of marijuana.

On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. Sanders v. United States, 5 Cir. 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir. 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir. 1967, 374 F.2d 878, 881. It is true that much of the evidence in this case is circumstantial, and that at one time some courts expressed the view that in criminal cases based on circumstantial evidence a special ruel required the district court to grant the motion for acquittal unless the circumstantial evidence excluded every reasonable hypothesis other than that of guilt. 4 The Supreme Court, however, has said that 'circumstantial evidence * * * is intrinsically no different from testimonial evidence' and that 'where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.' Holland v. United States, 1954, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166. The same test, therefore, for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial. Indeed, that is the prevailing rule in the federal courts today. See 2 C. Wright, Federal Practice & Procedure, 467, at 258. To reconcile some older Fifth Circuit cases with the Supreme Court's clear holding in Holland, this Court has rephrased the substantial evidence test: in criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused's innocence. United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. Notwithstanding these differences, which some might term verbalistic, we are in agreement with our brothers in other circuits that whether the evidence be direct or circumstantial, the matter of the defendant's guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt. See 2 C. Wright, Federal Practice & Procedure, 467, at 259.

Since there were seven defendants indicted and convicted and since the principal

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question this case presents is whether as to each one the Government's evidence was sufficient to sustain his conviction, in justice to each, a somewhat lengthy discussion of the Government's case is necessary.

At 9:00 a.m. on March 18, 1969, a Mexican taxicab carrying Fred Daniels and Bert Semple entered the United States at the Cordova Bridge in El Paso, Texas. Because both men appeared nervous and United States Customs inspectors had information that Daniels was suspected of smuggling, the inspectors at El Paso detained Daniels and Semple momentarily and searched them. The search revealed nothing but the inspectors asked the Mexican Taxi driver, as they had occasionally done in the past, to report to them after he let off the two men. The driver reported to the inspectors that following the search one of the men had said to him in Spanish, 'I thought those inspectors were real smart.' The speaker added that it had been useless for the officials to search them since they were not bringing anything back into the country: 'What we had, we left in Mexico.' The men told the driver that someone might be following them and gave him a tip to four dollars on a ride that cost only four dollars 'not to say where I had left them.' The inspectors then relayed this information to the Special Agent in charge of Customs in the El Paso area, who in turn alerted the other Special Agents.

About an hour after Fred Daniels and Semple entered the United States, the alerted agents observed Frank Daniels, Fred's brother, and another person driving south toward Mexico in Frank's light blue Volkswagen bus. At 10:30 agents dispatched to Juarez, Mexico, saw Frieda Edwards, sister of Fred and Frank Daniels, accompanied by a passenger, driving her dark blue Volkswagen sedan with a large luggage carrier on top. She was leaving the Las Vegas Motel in Juarez. The carrier appeared to be loaded and was covered with a green tarpaulin. Two men in Frank Daniels's light blue Volkswagen bus were following Frieda's car. Both vehicles stopped at the LaCuesta Restaurant in Juarez. A few minutes later the agents saw Frieda leave the restaurant in her car, but it no longer had the luggage carrier on top. Still without her luggage carrier, Frieda entered the United States at the Santa Fe Street Bridge in El Paso at 1:50 p.m.

The agents attempted to follow Frank Daniels's bus, but soon lost sight of it. At 3:00, however, the Agents spotted it at the Maxfim Restaurant in Juarez. A few minutes later they observed the bus leave the restaurant and drive across the street to the Riviera Motel. There the agents also observed a white-over-beige Volkswagen bus, later determined to belong to Craig Warner and occupied by Warner and April Covey.

At 4:45 Frank Daniels, Fred Daniels, and Michael Young left the Riviera Motel in Frank Daniel's bus and went next door to the Cafe Monumental. They went inside the cafe and seated themselves at a table at which Bert Semple, Sam Kranzthor, and Michael Jacobson were already sitting. As the agents sat outside the cafe, they noticed a 1966 white Chevrolet pickup truck, Texas license number 8H-3353, parked in the parking lot. Soon Frank Daniels walked out of the cafe, looked inside the white pickup truck and then walked away.

Neither Craig Warner nor April Covey actually attended the Cafe Monumental meeting. But their Volkswagen bus was at the adjacent hotel. Moreover, Covey's German Shepherd dog, 'steppenwolf,' was at the cafe.

In a short while Steppenwolf came trotting up to the agents. As they were feeding the dog, Jacobson came out of the restaurant, said that the dog 'belongs to a friend of mine,' and took him inside the cafe.

Within a few more minutes all six men left the cafe. Again, as in the cars, they paired off. Jacobson and Young walked with the dog back to the Riviera Motel. Semple and Kranzthor gor in the

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white Chevrolet pickup truck and drove off. Fred and Frank Daniels got in Frank's light blue Volkswagen bus and drove back to the Riviera Motel.

At 6:00, just as it was getting dark, the agents observed Frank Daniel's bus leave the motel. Close behind it was Warner's white-over-beige Volkswagen bus and Jacobson's white-over-dark-blue Volkswagen bus. Other than the fact that there were two persons in each bus, the agents could not identify the occupants. The Government...

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