491 F.2d 167 (9th Cir. 1974), 73-2007, United States v. Perez
|Docket Nº:||73-2007, 73-2157, 73-2008.|
|Citation:||491 F.2d 167|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Jesus PEREZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Casimiro ROCHIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maria Creselda LOMBERA, Defendant-Appellant.|
|Case Date:||January 21, 1974|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Earl L. Hanson, Mitchell W. Egers (Argued), of Hanson & Egers, Los Angeles, Cal., for Jesus Perez.
John K. Van de Kamp, Federal Public Defender, Kenneth L. Collins, Deputy Federal Public Defender, Los Angeles, Cal., for Maria Creselda Lombera.
David C. Marcus (Argued), Los Angeles, Cal., for Casimiro Rochin.
William D. Keller, U.S. Atty., Darrell W. MacIntyre, Asst. U.S. Atty. (Argued), Los Angeles, Cal., for plaintiff-appellee.
Before ELY and TRASK, Circuit Judges, and JAMESON, [*] District judge.
JAMESON, District Judge:
This is a consolidated appeal by defendants-appellants Jesus Perez, Casimiro Rochin, and Maria Creselda Lombera from their jury convictions for conspiracy to possess and distribute heroin, in violation of 21 U.S.C. § 846, and possession with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1).
Statement of Facts
The evidence, viewed in the light most favorable to the Government, may be summarized as follows:
On December 5, 1972 Sergeant Jose Villalba of the Los Angeles Police Department met in Oxnard, California with Alvaro Lombera, who was indicted, but not tried, with appellants. Villalba, acting in an undercover capacity, indicated that he was interested in buying a large quantity of heroin. Lombera informed him that 'their' supply was low and that 'they had only eight ounces available.' Lombera agreed to sell Villalba one ounce of heroin, as a sample, for $1,000.
Lombera instructed Sergeant Villalba to remain at their meeting place, stating that he would return in a half hour. Lombera went to his residence, which was then under police surveillance, and was met there by appellant Rochin. A few moments later Lombera drove Rochin's automobile to the place where Sergeant Villalba was waiting. Lombera sold Villalba one ounce of 74.3% Heroin for $1,000 and stated that by the following Wednesday he would be able to sell him 20 ounces for $950 per ounce.
On December 14, 1972 Sergeant Villalba telephoned Lombera that he was still interested in purchasing heroin. They arranged another meeting in Oxnard, at which Lombera agreed to sell Villalba 15 ounces of heroin for $950 per ounce on December 17, 1972.
Villalba and Lombera met at the intersection of Fifth and Ventura in Oxnard on December 17. The intersection was under surveillance by Officer Quinn of the Ventura County Bureau of Narcotics Enforcement and Detective Sergeant Thomas of the City of Port Hueneme.
Quinn was stationed in a parked automobile in a Sav-On Drugstore parking lot adjacent to the intersection. He testified that at about noon he saw appellant Perez inside a car parked directly in front of the drugstore 'in a position where he could observe Sergeant Villalba meeting with Mr. Lombera.' Quinn also observed Rochin in a vehicle parked in a parking lot directly across the street, in a position where he could observe Villalba and Lombera. Quinn testified that it is a normal procedure for those dealing in large quantities of heroin to post lookouts to watch for police or Government agents.
Originally the heroin sale was to have taken place at the intersection, but Lombera told Sergeant Villalba that there had been a change in plans, and that he was to follow Lombera to a flower ranch where Lombera and his wife, appellant Maria Lombera, were employed. They drove directly to a ranch located about two to two and one-half miles from the intersection, followed by Rochin.
Officer Quinn left his surveillance post to follow Rochin, and as he drove by Perez he noticed that 'Mr. Perez was turned around looking over his right shoulder. Mr. Rochin turned left on Fifth, proceeded up Fifth. At that time Mr. Perez looked around and followed his (Rochin's) vehicle in his (Perez') line of sight up Fifth.'
Upon arriving at the ranch Lombera entered a greenhouse. About ten seconds later he came out of the greenhouse with his wife, appellant Lombera, who was carrying a black purse and a shopping bag. Mrs. Lombera handed the purse to her husband. He opened it and removed four packages containing 16 ounces of 82.4% Heroin. Lombera placed the heroin in the trunk of Sergeant Villalba's vehicle. Mrs. Lombera then returned to the greenhouse carrying the shopping bag. Villalba arrested Lombera.
A few moments later Rochin drove into the driveway of the ranch and parked his vehicle. He approached Sergeant Villalba, saying, 'Is the thing good?' Villalba replied, 'Yes, it's good', and arrested Rochin. Located behind the driver's seat of Rochin's vehicle was a bag containing about two pounds of maltose sugar, which Villalba testified is a common ingredient used to cut heroin.
Another officer 1 then entered the greenhouse, arrested Mrs. Lombera, and seized the shopping bag she had previously carried to and from the greenhouse, which was located about 20 feet from where she was standing. The bag contained in packages 13 ounces of 83.5% Heroin.
Detective Thomas, who was stationed in a hamburger stand at the intersection, also observed Perez in the parking lot. He had known Perez for about a year and a half. He saw Perez leave, headed in the direction of the road leading to the ranch. When Thomas arrived at the ranch approximately three to five minutes later Perez was there and attempting to leave at a speed of 20 to 25 miles an hour. Thomas, who had been in radio contact with a surveillance helicopter, blocked Perez' exit and placed him under arrest. Located on the floorboard in the back seat of Perez' vehicle was a hat in which 1.5 grams of 27.7% Cocaine were found concealed in the hatband.
Pursuant to a warrant a search of Rochin's residence was conducted on the evening of December 17. Contained in an attache case in Rochin's bedroom was $5,150, including ten marked $100 bills which Sergeant Villalba had used to purchase the sample ounce of heroin from Lombera on December 5.
Contentions on Appeal
All appellants contend that the evidence was insufficient to sustain their convictions; (2) Perez and Rochin contend that the court erred in admitting evidence of Perez' possession of cocaine; (3) Rochin argues that hearsay statements of Lombera with respect to the heroin transactions of December 5 and 17 should not have been admitted; (4) Rochin and Mrs. Lombera claim that the prosecutor subjected her to improper cross-examination; (5) Mrs. Lombera contends that the Government's rebuttal evidence and evidence with respect to the contents of her shopping bag were improperly admitted; and (6) all appellants complain of improper remarks by the prosecutor in his opening statement and closing arguments to the jury.
Sufficiency of the Evidence
(a) Mrs. Lombera
Mrs. Lombera argues that the evidence was 'insufficient to establish that (she) knowingly participated in a conspiracy, consciously maintained dominion and control over the sealed packages of heroin, or intended to distribute that heroin.' We find no merit in this contention. She carried a purse and a shopping bag, each containing a large quantity of heroin, from the greenhouse to the Villalba vehicle. She handed the purse to her husband, who removed the heroin from the purse and placed it in the trunk of the Villalba car. Mrs. Lombera returned to the greenhouse with the shopping bag. Possession may be joint as well as several, constructive as well as actual. Mrs. Lombera had dominion and control over both the purse and shopping bag. Under the circumstances, this was persuasive evidence of both actual and constructive possession, as well as 'a potent circumstance tending to prove knowledge of the presence' of the narcotics. Evans v. United States, 257 F.2d 121, 128 (9 Cir. 1958), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958). Intent to distribute may be inferred from the large amount of heroin involved. See United States v. Mather, 465 F.2d 1035, 1037-1038 (5 Cir. 1972), cert. denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (1972).
We find ample evidence to sustain Rochin's conviction on the conspiracy charge. 2 He met Lombera on December 5, 1972 minutes before Lomberadelivered,
in Rochin's car, the first ounce of heroin sold to Villalba. At the time of his arrest Rochin had in his bedroom the $1,000 paid to Lombera by Villalba for this heroin. Rochin acted as a lookout at the meeting between Lombera and Villalba at the intersection on December 17, followed Lombera and Villalba to the ranch where the heroin was sold, and then approached Villalba and asked him, 'Is the thing good?' In addition, two pounds of maltose, a common ingredient used to cut heroin, was found in Rochin's car at the time of his arrest.
It is true, as Rochin contends, that the case against him is based upon circumstantial evidence. However, circumstantial evidence 'is not inherently less probative than direct evidence', United States v. Nelson,419 F.2d 1237, 1239 (9 Cir. 1969), and as we recognized in Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9 Cir. 1966), the nature of a conspiracy is such that it can rarely be proved in any other way.
The evidence of Perez' participation in the conspiracy is less conclusive. The jury could properly find, however, that he was acting as a lookout at the...
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