United States v. Murray
| Decision Date | 16 February 1973 |
| Docket Number | No. 71-2088-71-2090.,71-2088-71-2090. |
| Citation | 492 F.2d 178 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lonnie Melvin MURRAY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Oliver Curtis ROBERTS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roosevelt WALKER, Defendant-Appellant. HERNANDEZ CASES. Group II Appeals. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Donald S. Friedman (argued), of O'Gara & O'Gara, San Francisco, Cal., David K. Yamakawa, Jr. (argued), San Francisco, Cal., Barry Tarlow (argued), Los Angeles, Cal., for defendants-appellants.
James W. Meyers, Asst. U. S. Atty. (argued), Phillip W. Johnson, Special Asst. Atty. Gen., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before HAMLEY and CHOY, Circuit Judges, and SCHNACKE,* District Judge.
In our opinion filed today in the Group I appeals in the Hernandez Cases, United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973), the general background of an extensive alleged narcotics conspiracy is set out in considerable detail. As there indicated, the district court had divided the forty-nine defendants named in a two-count indictment into three groups for trial. The Group II Hernandez appeals, under consideration in this opinion, arise from the convictions obtained in the Group II trial. The Group III Hernandez appeals, arising from the third trial under this indictment, have been disposed of in a decision filed today in United States v. Valdivia, et al., 492 F.2d 199 (9th Cir. 1973).1
The defendants involved in the Group II trial were Lonnie Melvin Murray, Oliver Curtis Roberts, Roosevelt Walker, Gerald Wilson Frunzi, Martha Catarino, Willie Lauderdale, Manuel Campuzano, Michael (aka Lefaun Leon) Hughes, John Payne and Shirley Ann Conrad. The two-count indictment, charging a conspiracy and a substantive offense, is described at the outset of the Group I opinion. All ten Group II defendants were named in both the conspiracy and the substantive counts.
Defendant Hughes changed his plea during the trial, and the cases of defendants Payne and Conrad were severed for separate trials. Defendant Lauderdale's motion for judgment of acquittal was granted, and defendant Campuzano's like motion was granted as to count two. The jury found defendant Campuzano not guilty on count one. The jury found defendants Murray, Roberts, Walker, Frunzi and Catarino guilty as charged. All five appealed, but on the motions of Frunzi and Catarino, their appeals have been dismissed.
The result is that, of the Group II defendants, only Murray, Roberts and Walker are before us in the Group II appeals. While each has filed separate briefs, we have consolidated the three appeals for disposition in this court.
In the Group II appeals, one or more of the defendants have advanced arguments which were also advanced, and rejected, in the Group I appeals. These arguments are: (1) the documents taken from the Hernandez home in Mexico were inadmissible in evidence for various reasons (see discussion in section II of Group I opinion), and (2) certain telephone records were wrongfully obtained and used by the Government (see discussion in section III of Group I opinion). For the reasons stated in the Group I opinion, we hold these contentions to be without merit.
Defendants Murray and Roberts contend, in effect, that the evidence is insufficient to establish that they participated in a single over-all conspiracy of the kind charged in the indictment and that if the Government proved that either of them participated in one of several more limited conspiracies, such defendant was prejudiced by having that issue tried in the context of an over-all conspiracy. Murray also raises the related argument that, by reason of the likelihood of such prejudice, the trial court erred in denying his timely motion for a severance and separate trial.
At the outset of section I of our opinion in the Group I appeals, United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973), filed today, we discussed the general considerations to be borne in mind in dealing with challenges to the sufficiency of the evidence to support conspiracy charges. What we there said is equally applicable here, and, in addition, we note that the evidence introduced at this trial pertaining to the background facts of the single over-all conspiracy, is essentially the same as that introduced in the Group I trial, as summarized in the Baxter opinion. We therefore proceed at once to an examination of the record pertaining to the proof of conspiracy in the case of defendants Murray and Roberts.
Defendant Murray. Under the evidence considered in the light most favorable to the Government, the following factual pattern appears: The Hernandez "customer book" contains a page which is headed "(RAPHEAL)," under which reference is made to "Lonnie," with his telephone number and a number for "Brenda—Wife." This page also states the price per ounce "Lonnie" was to pay for heroin and cocaine.
The "customer book" showed Lonnie's purchases to have aggregated one and one-half pounds of heroin and cocaine, which would have cost him eight thousand six hundred dollars. He paid an additional eight thousand dollars on December 12, 1968, for fifteen ounces of heroin and seven of cocaine.
One of the telephone numbers shown in the "customer book" (751-6880) was actually that of W. E. Lauderdale in Los Angeles. When defendant Willie Lauderdale was arrested at his home in Los Angeles, two pieces of paper found in his bedroom contained Murray's name. A photograph of Murray was found upright on the dresser in Lauderdale's residence.
The telephone bills for Murray's own residence in San Francisco, which was under the name "Elliott Avant," showed forty-seven calls to the Lauderdale telephone, nine calls to the Brenda Martin telephone, nine calls to the Robert and Helen Hernandez home in Tijuana, and two calls to the Juan Hernandez telephone in Tijuana. Exhibit 511, a handwritten telephone book found at Murray's residence, contains the name "Hellen," with the Tijuana telephone number of Robert and Helen Hernandez.
There was direct or circumstantial evidence showing that Murray was in contact with Helen Hernandez, Cohn (the Hernandezes' distributor), Juan Hernandez and Wright. On April 2, 1968, approximately ninety-one grams of heroin were found in a garment bag in Murray's possession at the San Francisco International Airport.
Murray contends that his photograph, exhibit 546, found on Lauderdale's dresser, has no probative value because Lauderdale was acquitted by the court. We do not know what deficiencies in evidence, or other circumstances, caused the trial court to acquit Lauderdale. But the photograph does have probative value insofar as Murray is concerned, because it tends to show that the "Lonnie" referred to in the Hernandezes' "customer book" in connection with the key telephone number at the Lauderdale residence, is defendant Murray.
Murray has advanced a variety of arguments pertaining to particular items of evidence which, together, depict the relationship described above. We have examined each of these contentions but find that they are either without merit or are inconsequential.
Having in view the background evidence regarding the over-all conspiracy, and that which relates specifically to Murray, as reviewed above, we believe the jury could reasonably find that Murray must have known that other retailers, in addition to himself, were involved with the Hernandez organization in a broad project for the smuggling, distribution and retail sale of narcotics. The jury could also reasonably find that Murray must have realized that the benefits he and the other retailers derived from the operation were dependent upon their mutual participation therein. These basic findings are ample to support the jury determination that Murray, in effect, agreed to participate in the over-all scheme, and did participate therein. See Blumenthal v. United States, 332 U.S. 539, 557, 558, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Friedman, 445 F.2d 1076, 1080 (9th Cir. 1971); Daily v. United States, 282 F.2d 818, 820 (9th Cir. 1960).
We therefore hold the evidence sufficient to establish the existence of the over-all narcotics conspiracy, as charged, and Murray's participation therein. Moreover, as to Murray, since there was no variance between the indictment and the proof, there was no abuse of discretion in refusing to sever Murray's trial.
Defendant Roberts. Under the evidence considered in the light most favorable to the Government, the jury could have found the facts to be as follows:
According to the testimony this meant that the customer "Dumpso" could be reached at telephone number 737-3162 and that he paid three hundred dollars per ounce for heroin and five-hundred fifty dollars per ounce for cocaine. Exhibit 401 shows "Dumpso's" purchases of five pounds of narcotics in one and one-half months, at a total sales price of thirty-two thousand fifty dollars. Two witnesses testified that Roberts was known to them as "Dumpso."
Lannom delivered narcotics from the Hernandezes to Roberts in Los Angeles during 1966. In about September of 1968, defendant John Payne delivered two packages to Lannom and told Lannom that "Dumpso" was "doing fine." On October 17, 1968, Wright, one of the leading figures in the Hernandez operation, met with Payne who gave Wright thirteen thousand one hundred dollars. At this meeting, Payne told Wright that twelve thousand dollars of this amount was from "Dumpso," and twelve thousand dollars was...
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