United States v. Mirenda

• Citation: 443 F.2d 1351
• Decision Date: 20 July 1971
• Docket Number: No. 26824,and 26826.,26825,26824
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Philip MIRENDA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose M. VERDUGO-MEDINA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ramon FRAGOSO-HERRERA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

443 F.2d 1351 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Philip MIRENDA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jose M. VERDUGO-MEDINA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ramon FRAGOSO-HERRERA, Defendant-Appellant.

Nos. 26824, 26825, and 26826.

United States Court of Appeals, Ninth Circuit.

June 4, 1971.

Rehearing Denied July 20, 1971.

Clay G. Diamos (argued), Tucson, Ariz., for defendant-appellant Philip Mirenda.

Ann Bowen, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty., Tucson, Ariz., for appellee.

John R. McDonald (argued), Tucson, Ariz., for defendant-appellant Jose M. Verdugo-Medina.

R. Lamar Couser (argued), Tucson, Ariz., for defendant-appellant Ramon Fragoso-Herrera.

Before BARNES, BROWNING and TRASK, Circuit Judges.

Rehearing Denied in No. 26825 July 20, 1971.

BARNES, Circuit Judge:

The three actions entitled as above are appeals from a joint trial of three of five defendants jointly indicted. The charge was that they did, knowingly and with intent to defraud the United States, "receive, conceal, buy, sell and facilitate the transportation, concealment and sale of 325 pounds of marijuana, at Tucson, Arizona, on June 7, 1970," after the said marijuana had been imported contrary to law, when said defendants knew the said marijuana had not been presented for inspection at the point of entry into the United States, namely Nogales, Arizona. The inspection was required by 19 U.S.C. § 1461;¹ the concealment and sale allegedly violated 21 U.S.C. § 176a.²

Each of the defendants urge as error on this appeal various points. Some are urged only by one defendant; some by two defendants; one by all three.

Without passing on appellant Fragoso's first alleged error — withdrawn as moot at the time of oral argument — we adopt the appellee's division of the alleged errors into eight categories, noting which defendants urged the point.

I. (Urged by all three defendants.) Error in refusing a continuance of trial.

II. (Urged by Mirenda and Fragoso.) Error in the court's order as to the interview of the informer by counsel for defendants; and in government counsel's implementation of the order.

III. (Urged by Fragoso.) Error in the court's refusal to permit Fragoso to reopen his case for the impeachment of an informer.

IV. (Urged by Mirenda and Medina.) Lack of proof by government there was "no presentment" for inspection of marijuana involved.

V. (Urged by Medina.) Error in allowing proof of money found on Medina at time of arrest.

VI. (Urged by Mirenda and Medina.) Error in admission of telephone records, without a sufficient foundation.

VII. (Urged by Medina.) Error in refusal to give offered instruction 5, on the credibility of witnesses.

VIII. (Urged by Mirenda and Medina.) Insufficient evidence to prove marijuana was imported unlawfully.

We conclude none of the errors urged have merit, and affirm the jury's conviction as to each defendant.

I.

FAILURE TO GRANT CONTINUANCE.

In urging error in the trial judge's refusal to grant a continuance, we are faced with the general rule of law that the trial judge has a large amount of discretion in granting or denying a continuance of a trial. Sendejas v. United States, 428 F.2d 1040, 1046 (9th Cir.1970), and cases cited therein; Moore v. United States, 394 F.2d 818, 819 (5th Cir.1968), cert. denied, 393 U. S. 1030, 89 S.Ct. 641, 21 L.Ed.2d 573.

We are required, in considering the exercise of such discretion, to turn to what happened, chronologically, in these cases prior to the motion for continuance, made on August 4, 1970, for Mirenda, and joined in orally on the same date on behalf of defendants Medina and Fragoso.

The crime charged in the indictment in this action allegedly occurred on June 7, 1970. The indictment was filed June 16, 1970. Medina and Fragoso were arraigned June 22, 1970, and Mirenda on June 29, 1970.

A motion to suppress (later amended) was filed on behalf of Medina on June 25, 1970, and set for hearing on July 20, 1970. On June 30, Mirenda was arraigned, and trial set for July 30, 1970. On July 2, 1970, Fragoso's motion to suppress was set for hearing on July 20, 1970. On July 9, 1970, the trial was continued from July 30, to August 4, 1970. On July 10, 1970, Notice of Trial on August 4, 1970 was sent to counsel for all defendants here appearing.

On July 16, 1970, Mirenda filed a motion to require the disclosure of the name of "confidential informant," and the hearing of said motion was set for August 4, 1970, by the moving party.

The motion to suppress came on for hearing on July 20, 1970. On the date, counsel for Mirenda suggested that the court might wish to rule then on his disclosure motion, at that time set for August 4, 1970 R.T. Pleadings Vol. I, p. 75.

The prosecution then, for the record, advised the court of the government's efforts (and lack of success), to place the informer, a resident of Mexico, under "a material witness warrant of arrest, should he approach or come across the border.

The court, while indicating the testimony he had heard on the motion to suppress indicated the defendants knew the identity of the informer, and that the disclosure of his name would be an idle gesture, nevertheless, ordered the government to name the informer, and to produce him at the trial, "if possible" R.T. Idem. p. 76, and to "make a report to the Court on the day prior to trial as to the results of its efforts to produce the informer." Idem. p. 76.

No objection was made by any defendant to this procedure.

On the day prior to trial, August 3, 1970, the government reported to court and counsel with respect to its efforts: (a) that the true name of the informer, thought by the customs agent to be "Sergio Alarcon," had been reported to defense counsel; (b) that the informer's name was "Sergio Hidalgo-Ramirez," and not "Sergio Alarcon"; (c) that Hidalgo Ramirez was in government custody, having been served with a subpoena as a government witness; and that he would appear at the trial on August 4, 1970, as such witness. R.T. August 3, 1970, p. 3.

At that time, Mr. Thikoll, counsel for co-defendants Coats and Mirenda "merely asked that I be given an opportunity, place and time to interview him today," and for a two day continuance. Indem. pp. 3-4.

The court granted the interview and set it for 3:30 p.m. on August 3, 1970,³ but denied the motion for continuance. Thereafter, counsel for Verdugo, Medina and Fragoso joined in the motion for continuance, and each were denied.

At 3:40 p.m. on August 3, 1970, counsel for all appellants interviewed the informant. A reporter and an interpreter were present, as well as government counsel. The transcript of what took place appears in the Clerk's Transcript, pp. 99 to 109. The informer was advised of the judge's order hereinabove quoted. He declined to talk to counsel for the defendants as he understood he had the right so to do — stating, "It does not interest me to tell you now the things that I'm going to say in the trial." C.T. p. 104. The informant stated he had been served with a government subpoena "about five days ago," or approximately July 28, or 29, 1970.

No objection was made by any defendant to the conduct of the interview, until the jury had been picked on August 4, 1970. R.T. Vol. I, p. 21.

On August 4, 1970, the trial started. Counsel for Mirenda filed a motion for a two day continuance. R.T. Vol. I, p. 14. The court stated he would rule on the motion later, and after the jury was chosen. The other two appellants herein joined in the motion for a two day continuance. Counsel for Medina then asked for a thirty day continuance. The government then disclosed the arrest record of the informant, and that he had been a reliable informant previously, in one narcotics case and two immigration cases. The court then denied the motions for a continuance, as well as others. R.T. Vol. I, p. 26, line 17.

Had the government made any false representations, either as to the criminal record of the informer (or the lack of such), or as to when it first knew the informer's true name; or as to the reliability of his past actions as an informer, we can only assume the defendants would have discovered this falsity in time to urge the true facts, either during the trial, or on a motion for new trial. To this day the defendants' position is that they might, with a continuance even of two days, have discovered some fact of value to their defense. They have not attempted to suggest what that fact or facts might be.

Further, Medina at the trial testified as to his contact with "the informant that has informed" on June 7th, 1970, both at the Halfway Cafe, and the '84 Cafe in Tucson, and previously, in Nogales R.T. Vol. II, p. 364; and that he and Fragoso and the informer drove back from Tucson to Nogales, Sonora, in the same auto Idem., p. 366.

Fragoso, on the other hand, testified he had never seen the informant before the trial Idem., p. 391 (thus directly contradicting Medina). He later testified he had met the informant at the Halfway House with Medina (idem. p. 393), and at the '84 Cafe in Tucson (idem. p. 393), but never saw him again until the trial (again directly contradicting Medina) (idem. p. 400).

This testimony at the trial supports the court's statement made after hearing the evidence on the motion to suppress, that the defendants had at all times a very good idea of whom the informer might be, and that "the disclosure of his name would be an idle gesture." We agree.

We find no abuse of discretion in the court's denial of the motion for continuance.

II.

THE INTERVIEW BY DEFENDANTS' COUNSEL OF THE INFORMANT.

Counsel for the government complied fully with the court's order as to what the informant was to be told at his interview the day prior to trial. In no way does the instruction compare with that held improper in Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966) or...