United States v. Nunez

Decision Date03 December 1973
Docket NumberNo. 73-1252.,73-1252.
Citation483 F.2d 453
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frank Hinsley NUNEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Oscar B. Goodman (argued), of Goodman & Snyder, Las Vegas, Nev., for defendant-appellant.

Alice A. Wright, Asst. U.S. Atty. (argued), William C. Smitherman, U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Before HAMLIN and CARTER, Circuit Judges, and BOLDT, District Judge.*

OPINION

JAMES M. CARTER, Circuit Judge:

Appellant Frank Hinsley Nunez was charged and convicted in Count 1 of conspiring between December 1, 1971, and February 22, 1972, to import marijuana from Mexico to the United States in violation of 21 U.S.C. §§ 960(a) and (b), and 952(a). In Counts 2, 4, 6 and 8 he was charged with and convicted of importing marijuana into the United States in violation of the same sections. In Counts 3, 5, 7 and 9 he was charged with and convicted of possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b).

He was sentenced on Count 1 to five years, and on each of the substantive counts to five years, to run concurrently with each other but consecutive to the sentence on Count 1.

Eight other defendants were named in the indictment as co-conspirators: Michael Robert Clark, Roy George Emerzian, Jr., Michael John Hindman, Gerald Marshall Jewell, Richard Lee Morgan, Roger Lee Mason, Steve Michael Rutledge and Charles Leon Gray. Various of these parties were named as co-defendants in the substantive counts. Only Nunez was tried. There were no objections to the instructions of the trial court. Nunez appeals from the convictions.

Emerzian testified at the trial. He entered a plea of guilty to one count in the indictment. He was sentenced under the Youth Corrections Act and placed on probation. Rutledge testified at the trial. He was an addict and entered a guilty plea to one of the charges. He was sentenced under the Youth Corrections Act and placed on probation. Mason testified at the trial. He was arrested on a charge of parole violation growing out of a state robbery charge. His parole was revoked in March 1972. He was incarcerated in a California institution at the time of his testimony. The charges against him in the present case were dismissed.

Morgan pled guilty to two counts in the indictment. He was sentenced to concurrent terms of five years. Clark pled guilty to the conspiracy count. He was sentenced under the Youth Corrections Act and placed on probation. Hindman pled guilty to one count and was sentenced to a term of three years. Jewell pled guilty to one count and was sentenced to custody under the Youth Corrections Act. Gray pled guilty to one count and was given a split sentence of four years, with probation granted on condition that six months be served in a jail-type institution.

Nunez raises two contentions:

(1) Whether the trial court erred in admitting evidence of prior similar acts occurring before the period of the conspiracy specified in the indictment; and
(2) Whether the trial court erred in admitting statements by co-conspirators, implicating Nunez, where independent evidence implicating him was also introduced into evidence.

We affirm.

I. Prior Similar Acts

The trial court admitted evidence of four different series of events on the ground that they constituted prior similar acts bearing on the issues of plan, state of mind, intent, and lack of innocent purpose. The law is clear that such similar acts are admissible. United States v. Jiminez-Robles (9 Cir. 1969) 415 F.2d 308; United States v. Rodriguez (9 Cir. 1972) 459 F.2d 983, cert. denied, 409 U.S. 865, 93 S.Ct. 158, 34 L.Ed.2d 113; United States v. Hasley (9 Cir. 1972) 465 F.2d 968.

Here the conspiracy and the substantive counts involved charges of smuggling large amounts of marijuana from Mexico into the United States by airplanes and thereafter moving the marijuana in automobiles. The seats were generally removed from the plane in order to carry a large load of marijuana. The four sets of acts detailed below were sufficiently recent and similar in character as to be admissible under the general rule above.

(1) Emerzian testified that on February 28, 1971, prior to the conspiracy alleged in the indictment, Nunez and his wife came to Morgan's home in Fresno, California, where Emerzian was present. This was just prior to a trip to Phoenix, Arizona, to spend the night and then go on to Mexico. The four of them, Emerzian, Morgan, Nunez and his wife, went to the airport at Chandler Field in Fresno in a station wagon. Morgan and Emerzian unbolted seats from an airplane in the presence of Nunez and his wife. The seats were placed in the station wagon. Nunez' wife left with the seats in the station wagon and Nunez, Morgan and Emerzian left in the airplane for Phoenix, stayed there two nights, then flew to a dirt strip near Culiacan, Mexico, to pick up marijuana. Emerzian, Morgan and Nunez were present when the marijuana was loaded into the plane.

Nunez stayed in Mexico and Morgan and Emerzian flew to Palm Springs, California, and on to Palo Alto, California, where the marijuana was unloaded into a van after a phone call by Morgan.

(2) Three days later, Morgan and Emerzian flew back to Culiacan, Mexico, for another load of marijuana and met Nunez. A large amount of money was handed from Morgan to Nunez and from Nunez to the "people down there."

The next day, Frank Nunez left to go back to the United States, probably by bus. Morgan and Emerzian flew back to Palm Springs, California, with the marijuana and transported it to Watsonville, California.

(3) Rutledge, another co-conspirator, testified that about Thanksgiving in 1971, he went with John Plemons to Los Angeles, where they picked up Nunez. He was introduced to Nunez by Plemons and they drove back to a house near Tarzana, California. Nunez and Plemons loaded the trunk of the car with 20 sugar sacks containing numerous kilos of marijuana. They returned to the motel where they had picked up Nunez and several of the kilos were opened in the presence of Nunez to make sure it was marijuana. Plemons and Rutledge then drove back to Fresno and on to San Francisco with the marijuana.

(4) An airplane was seized on April 6, 1971, along with 900 pounds of marijuana. Richard Morgan was arrested. A note was found in the plane (Ex. 140) in Nunez' handwriting, reading:

"Rich;
You are going to land at a different strip. I\'m still here where they\'re packing, but I\'ll be there when you land. The guy with the yellow shirt will fly back with you to show you the place to land.
P.S. Don\'t worry, everythings O.K.

Frank."

II. The Conspiracy and the Substantive Counts

We relate in summary form the evidence as to Counts 2 through 7, and the facts concerning the dumping of a load of marijuana at Thermal, California. Apparently this incident was not the subject of a count in the indictment, but was a part of the conspiracy.

Concurrent sentences were imposed on Nunez on all substantive counts. Under the concurrent sentence doctrine of Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L. Ed. 1774 (1943), and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed.2d 707 (1969), we do not review the sufficiency of the evidence as to Counts 2, 3, 8 and 9.

(a) The Marijuana Dump at Thermal

Mason, a pilot, testified he lived in Kerman, California, near Fresno. He met Morgan in Fresno some months before the date of his testimony. Morgan asked him if he would be interested in smuggling marijuana. Morgan was to set up the plan, and find an airplane and a road or alfalfa field to land in. He was to pay Mason $10,000 a trip. In December 1971, Morgan gave him the money to rent a plane in Lompoc, California. Mason then met Emerzian through Morgan. Mason and Emerzian flew the plane to Culiacan, Mexico. Emerzian had been there before and showed Mason the landing strip. They loaded it with marijuana and flew back to the United States. Because of trouble with the plane, they landed at Thermal, California, in the Imperial Valley. There they dumped the marijuana and the empty gasoline cans in a pile on the side of the runway.

Emerizan called Morgan. As a result of the call, Rutledge and one Richard Dillon came down from Fresno in a red Chevrolet pickup and met Mason. They had to abandon the marijuana.

Mason and Rutledge flew back to Kerman. Emerzian and Dillon drove back to Fresno in the red Chevrolet pickup.

On his return, Mason talked to Morgan, who told him that the load was half paid for; that there would be no more trips until Frank Nunez found out for sure that the police or the authorities had picked up the marijuana load; that he Nunez had evidently thought they were trying to steal the load.

Mason took Rutledge back to Morgan's apartment in Fresno. Morgan repeated the same statement and also said Frank Nunez was upset about losing the load.

Rutledge, a co-conspirator, testified that he was introduced to Morgan by John Plemons about December 1, 1971. Morgan told him how the smuggling operation would be conducted. He was to assist in the take-off, take the seats out of the plane, and upon returning from Mexico, unload the airplane and drive by car from 50 to 70 miles and then meet someone.

Rutledge went with Plemons and Morgan to buy a truck. Morgan, under the assumed name of John Fletcher, bought a red Chevrolet pickup with a white camper on it.

Rutledge helped Emerzian and Mason with the smuggling trip which resulted in dumping the load of marijuana at Thermal.

Emerzian, another co-conspirator, testified about his smuggling activities after the beginning of the conspiracy on December 1, 1971. Before December 9, 1971, Morgan asked him to take a pilot down to Mexico. The pilot, he later learned, was Mason.

Emerzian and Mason flew from Kerman, California, to Culiacan, Mexico, and back. Emerzian confirmed Mason's...

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