463 F.2d 567 (5th Cir. 1972), 71-2921, United States v. Scheffer

Docket Nº:71-2921.
Citation:463 F.2d 567
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Daniel Mark SCHEFFER et al., Defendants-Appellants.
Case Date:June 22, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 567

463 F.2d 567 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel Mark SCHEFFER et al., Defendants-Appellants.

No. 71-2921.

United States Court of Appeals, Fifth Circuit.

June 22, 1972

Rehearing Denied July 28, 1972.

Rehearing En Banc Denied Sept. 11, 1972.

Page 568

William F. Walsh, Bennett Stokes, Houston, Tex., for Scheffer and Stecher.

Abraham Kazen, III, Laredo, Tex., for Collins.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Edward B. McDonough, Jr., Anthony C. Aguilar, Asst. U. S. Attys., Houston, Tex., Henry E. Petersen, Asst. Atty. Gen., Beatrice Rosenberg, Jerome Feit, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before AINSWORTH, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Fred Collins, Daniel Scheffer, and David Stecher were tried jointly and convicted of importing a narcotic drug into the United States in violation of 21 U.S.C. § 174. 1 On appeal before this court appellants contend that illegally-seized evidence was admitted against them in two separate instances; that the district court erroneously failed to inform counsel of its proposed jury instructions in contravention of Rule 30 of the Federal Rules of Criminal Procedure, Title 18, U.S.C.; and that the district court erred

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by refusing to sentence the principal prosecution witness until after the witness had testified. We hold that Collins and Scheffer were convicted with evidence obtained in violation of their Fourth Amendment rights, and the convictions of these two appellants must be reversed. The conviction of appellant Stecher is affirmed, however, since his Fourth Amendment rights were not abridged and the other assignments of error are all without merit.

The three appellants in this case were arrested as part of a larger group of nine persons who smuggled cocaine across the Mexican border at Laredo, Texas. The smuggling operation had its beginnings on November 22, 1970, when Collins, Scheffer and Robert Saenz went to Grand Junction, Colorado, for the purpose of producing a rock music concert at a local college. While in Grand Junction, Collins, Scheffer and Saenz had several conversations with Bernt Meyer and Garry Johnson. During one of these conversations, Meyer indicated that he had previously smuggled cocaine from South America and that he would be interested in repeating the experience.

In early December of 1970, Scheffer and Collins visited Saenz in San Luis Obispo, California, and asked Saenz to contact Meyer about bringing a shipment of cocaine into the United States. Saenz went to see Meyer and Meyer agreed to smuggle the cocaine provided he was advanced $7,000.00 and provided he could have one pound of the cocaine. 2 Scheffer, Collins and Saenz collected money from various sources and presented the cash advance to Meyer who was waiting at the airport at Santa Maria, California. Meyer took the money and departed for South America by airplane.

Several days later, Meyer, having made his way to Mexico City, Mexico, telephoned Saenz and requested additional funds to cover some unexpected expenses. Saenz notified Collins and Scheffer of Meyer's request, and shortly thereafter Collins arrived at Saenz' home, accompanied by appellant Stecher. In the presence of Saenz, Stecher gave Collins $1,000.00 which Collins handed over to Saenz. Saenz kept $300.00 of this money and sent the remaining $700.00 to Meyer.

On December 25, 1970, Meyer was in Nuevo Laredo, Mexico, where he placed a telephone call to John Kerr and Jackson Lallerstedt in Atlanta, Georgia. Pursuant to Meyer's instructions Kerr and Lallerstedt drove to Nuevo Laredo in a Volkswagen van and received approximately 1 1/2 pounds of cocaine from Meyer. While Kerr and Lallerstedt hid the cocaine in two separate places in the van, Meyer crossed the border by taxi and registered at a motel in Laredo, Texas. Kerr and Lallerstedt then proceeded to drive the van over the International Bridge into Texas.

During a routine border search customs inspectors discovered one of the caches of cocaine and immediately placed Kerr and Lallerstedt under arrest and fully informed them of their rights. After a short period of interrogation Kerr and Lallerstedt advised customs officials that they were part of a larger group involved in a smuggling operation and that they desired to cooperate in the apprehension of the other smugglers. The two men disclosed Meyer's involvement in the operation and stated that Meyer could be found at the Ramada Inn in Laredo, Texas.

Armed with this information, customs agents went to the Ramada Inn, found that Meyer was registered and knocked on his door. When Meyer opened the door he was placed under arrest and taken to the county jail where he was incarcerated for the night.

The next day Meyer also decided to cooperate, and he and customs officials devised a plan for the arrest of Saenz. Meyer was released on bond and supplied with two plastic bags containing a small amount of cocaine mixed with a

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large quantity of an inert material, similar in appearance to cocaine. Accompanied by customs agents, Meyer boarded a government aircraft and flew from Texas to California where he arranged a meeting with Saenz. As customs agents observed from afar, Saenz arrived at the specified meeting place and received the dummy packages of cocaine from Meyer. Saenz was then arrested.

At this point one of the defendants informed customs agents that an undiscovered quantity of cocaine still lay hidden in the Volkswagen van. The agents in California promptly notified customs officials in Texas of this information and a further search of the vehicle revealed an additional pound of cocaine.

Meanwhile, Saenz, not to be outdone by his associates, decided that he too would cooperate with the authorities in the apprehension of the other smugglers. Accordingly, Saenz telephoned the Scheffer house in California and informed Scheffer and Collins that Meyer was on his way with the cocaine. Meyer and Saenz then picked up the dummy packages of cocaine, which now contained a small amount of fluorescent dust, and proceeded to Scheffer's residence. While customs agents watched from concealed positions, Meyer and Saenz entered the house through the front door. The agents waited a few minutes and entered the house without a search warrant. Scheffer, Collins and Johnson were placed under arrest and taken to a dark room where agents checked them with a fluorescent light and discovered fluorescent areas on the hands, on the mustache and inside the nose of each defendant. On a table in the living room agents observed a knife, a spoon and the opened packages of substitute cocaine.

Prior to the raid on the house, Saenz had informed Scheffer that Kerr had been arrested and was in need of $1,000.00 to make his bail bond. After receiving a telephone call, Scheffer told Saenz that Stecher was sending the bail money by telegraph. The following day, Saenz and customs agents went to the local Western Union office and picked up a money order for $1,000.00 from Stecher. Stecher was subsequently arrested.

An indictment was initially returned charging Kerr, Lallerstedt, Meyer, Saenz, Johnson, Collins, Scheffer and Stecher with various counts involving the unlawful importation of...

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