United States v. Ross, 73-2203.

• Citation: 493 F.2d 771
• Decision Date: 09 May 1974
• Docket Number: No. 73-2203.,73-2203.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommie Dell ROSS and Dorothy Ruth Ross, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

493 F.2d 771 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Tommie Dell ROSS and Dorothy Ruth Ross, Defendants-Appellants.

No. 73-2203.

United States Court of Appeals, Fifth Circuit.

May 9, 1974.

Charles C. Foster, Houston, Tex. (court-appointed), for defendants-appellants.

William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Ronald F. Ederer, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.

Before JONES, THORNBERRY and COLEMAN, Circuit Judges.

COLEMAN, Circuit Judge:

On December 20, 1971, the Supreme Court decided Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. It was there held that plea bargaining is an essential component of the administration of justice and, properly administered, is to be encouraged. In Santobello, the bargain for a particular plea was for the purpose of securing the dismissal of more serious charges, including no sentence recommendation by the prosecutor.

The present appeal requires the application of Santobello principles to prosecutorial presentation of evidence and oral argument to the trial jury.

Tommie Dell Ross and Dorothy Ruth Ross, husband and wife, of Waco, Texas, were convicted of fraudulently conspiring to import heroin into the United States from Juarez, Mexico, and of actually importing it (two counts). Ross was sentenced, among other things, to fifteen years imprisonment while his wife was sentenced to five years imprisonment. According to brief of the appellants (Court appointed counsel) Ross is at Leavenworth and Mrs. Ross is at Alderson.

For the reasons hereinafter stated, we reverse these convictions and remand for a new trial.

Since the verdict was for the government, we give its version of the facts.

On or about November 29, 1972, Mrs. Glenna Faye Sims, Tommie Dell Ross, Dorothy Ruth Ross, and their two year old child went to El Paso, Texas, in appellants' automobile to do some Christmas shopping.

On the following day, about 5:00 p.m., all went to the "Club 77", Juarez, Mexico. At approximately 6:00 or 6:30 p.m. Mrs. Sims felt tired and told the Rosses she wanted to return to El Paso, however, they wanted to remain in Juarez a little longer. About this time, they left the club and Mr. Ross went down the street about a block while Mrs. Ross and Mrs. Sims waited for him outside the club. Mr. Ross returned and went back into the club with Mrs. Ross. Mrs. Sims waited in the car with the Ross baby. After a while, appellants came out and got into the car. From there they drove to a taxi stand to get a cab for Mrs. Sims for her return to El Paso. In the car, Mrs. Ross removed from her brassiere some packages wrapped in tissues, gave them to Mr. Ross, who in turn gave them to Mrs. Sims. Mrs. Sims inquired as to what they were, to which Mr. Ross replied that it wasn't anything and to place them in her brassiere and not in her purse. Mr. Ross then proceeded to get a taxi for Mrs. Sims. Prior to this, both appellants had instructed Mrs. Sims that when she got to the bridge, the only thing she had to do was to declare her citizenship, show her I.D. card, pay for the liquor and nothing else. Mrs. Sims was further instructed to wait for appellants at the first traffic light once over the bridge in El Paso, and they would follow in a little bit.

Mrs. Sims arrived at the bridge where she was met at primary by Inspector Willie Perez. Since she appeared to be nervous and overly friendly, Mr. Perez decided to send her to secondary for further examination. Mrs. Sims was taken to the office where she was searched by Inspectress Joy Martin. This revealed the packages of heroin. This happened at approximately 7:00 to 7:30 p.m.

Agent George A. Hirsch was notified to investigate the case. He advised Mrs. Sims that she was under arrest for possession of heroin. Mrs. Sims maintained that she did not know that the packages contained heroin. After relating to Agent Hirsch what had transpired in Juarez, the type of vehicle they were driving and where she was to meet them, she decided to cooperate with the Agent in delivering the heroin. Upon obtaining the description of the automobile, the inspectors were alerted, and it was determined that appellants had come through the bridge into El Paso, Texas, at 8:00 p.m.

A plan was devised whereby Mrs. Sims would deliver the heroin as originally planned by appellants. The same taxi, with its hood and trunk up, was to park approximately one block from the designated corner so that if appellants inquired why Mrs. Sims was late, she could use as an excuse that the taxi had broken down.

The agents and Mrs. Sims proceeded to meet the appellants, but neither they nor their car was anywhere around. Mrs. Sims then located Mr. Ross by phone at the Society Club. Upon inquiry by Mr. Ross, Mrs. Sims told him that she was late because the cab broke down and that she had not been searched at the bridge. Mrs. Sims was told by Mr. Ross to wait where she was and that they would pick her up. While she was waiting, two police officers came up to Mrs. Sims and stopped to talk to her. Right about this time, Mrs. Sims noticed appellants' car come up and drive by without stopping. The car came back again through an alley where it stopped. Mrs. Ross got out of the car and went over to Mrs. Sims, and inquired of her what the policeman wanted. Mrs. Ross and Mrs. Sims proceeded to the car where Mr. Ross was waiting. Mrs. Sims sat in back and Mrs. Ross in the front passenger seat. In the car, Mrs. Sims gave the heroin to Mr. Ross who in turn gave it to Mrs. Ross to place in her brassiere. Mrs. Sims asked what it was, to which Mr. Ross answered with a smile, "Oh, nothing". As they drove away from the alley, the agents followed. At the appropriate time, the agents turned on their siren. Upon hearing the siren, Mr. Ross asked Mrs. Sims why she had not told them that there was a police car. Mr. Ross at this time tried to run away from the agents and told Mrs. Ross to throw the heroin away, which she did. Agent Hirsch stated that as they were following the appellants, Mr. Ross suddenly turned left into Eucalyptus Street. Mr. Ross then quickly turned right, jumping the curb, but could not proceed in that direction because there was a house in his way. He reversed the car and made a U-turn in the sidewalk area and proceeded back into Eucalyptus Street, however, by this time, the agents had him blocked and Mr. Ross was forced to stop his automobile. During the chase, Agent Hirsch saw the passenger side window go down where Mrs. Ross was sitting, and the heroin packages were thrown out but later retrieved by Agent Hirsch.

From this it will be seen that Mrs. Sims, not the defendants, performed the act of transportation across the border. The defendants were never seen in possession of the contraband; Mrs. Sims was apprehended in possession of it. Later on, under police surveillance, Mrs. Sims says she gave the heroin to Ross, who gave it to his wife, and the police saw the packages thrown out a car window, although they could not see who threw them. To make a long story short, this case hinged altogether on the testimony of Mrs. Sims, who was caught at the border and who, in return for incriminating the Rosses, was neither arrested nor prosecuted.

In this state of affairs, while a witness for the government, on redirect examination government narcotic agent George A. Hirsch, over objection, was allowed to testify as follows Tr. 211-218:

"Q. (By Mr. Marquez:) Did you have a conversation with Mr. Ross after he was arrested?

"A. Yes, sir, I did.

"Q

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