United States v. Scheffer

• Decision Date: 11 September 1972
• Docket Number: No. 71-2921.,71-2921.
• Citation: 463 F.2d 567
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Mark SCHEFFER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

463 F.2d 567 (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 Denied September 11, 1972.

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.

Rehearing En Banc Denied September 11, 1972.

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 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 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 narcotics. However, the government filed a motion to sever Johnson, Collins, Scheffer and Stecher due to the expected use of statements from the cooperating defendants which incriminated the other defendants. See Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. The district court granted the motion and the severed defendants were tried jointly before a jury under a three-count indictment alleging that the defendants knowingly imported, transported and concealed cocaine and conspired to do so, all in violation of 21 U.S.C. § 174. The jury found Johnson innocent, but returned a verdict of guilty as to the other three defendants, and this appeal followed.

I.

Appellants' first contention relates to the admission into evidence of the packages of cocaine seized from the Volkswagen van during the border search and at the subsequent search after the vehicle was taken into custody. Citing Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, appellants object to the district court's holding that they lacked standing to challenge the legality of these searches. The two factors which conferred standing in Jones, however, are not present here. In Jones police officers searched an apartment occupied by the defendant and found narcotics. At the trial the government based its entire case on possession of these narcotics by the defendant. Because the defendant failed to allege an ownership interest in either the narcotics or the apartment, the trial court held that the defendant did not have standing to contest the legality of the search which produced the damaging evidence. The Supreme Court refused to place the defendant in such a dilemma and based its reversal on two grounds:

"As to the first ground, we are persuaded by this consideration: to hold to the contrary, that is, to hold that petitioner\'s failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner\'s conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory

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