U.S. v. Gonzalez

• Decision Date: 18 March 1977
• Docket Number: Nos. 75-1358 and 76-1197,s. 75-1358 and 76-1197
• Citation: 548 F.2d 1185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Severiano Olivarez GONZALEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vincente CARRERRA, a/k/a Severiano Olivares, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1185

548 F.2d 1185

UNITED STATES of America, Plaintiff-Appellee, v. Severiano Olivarez GONZALEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Vincente CARRERRA, a/k/a Severiano Olivares, Defendant-Appellant.

Nos. 75-1358 and 76-1197.

United States Court of Appeals Fifth Circuit.

March 18, 1977.

Bertrand C. Moser (Court-appointed), Houston, Tex., for defendants-appellants.

Edward B. McDonough, Jr., James R. Gough, Jr., Anna E. Stool, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., for U. S. in 75-1358.

Michael P. Carnes, U. S. Atty., Judith A. Shepherd, James A. Rolfe, Asst. U. S. Attys., Dallas, Tex., for U. S. in 76-1197.

Appeals from the United States District Courts for the Southern and Northern Districts of Texas.

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.

FAY, Circuit Judge:

THE CASES

The appellant, Severiano Olivarez Gonzalez, also known as Vincente Cesar Carrerra, also known as "Chente" Carrerra, was charged along with Jose Lopez Garcia in a three-count indictment in the Southern District of Texas. The charges included (1) conspiracy to possess with the intent to distribute heroin; ¹ (2)possessing with intent to distribute heroin; ² and (3) distributing heroin. ³ The overt acts supporting the conspiracy, the possession, and distribution allegedly occurred on May 29, 1974. After a trial by jury in Laredo, Texas, the Government dismissed Count I, ⁴ the appellant, Gonzalez, was found guilty on Count II and acquitted on Count III, and Garcia was found guilty on Counts II and III. The appellant was sentenced on Count II to serve a term of imprisonment of five years followed by a special parole term of three years. Gonzalez' appeal from the Laredo conviction forms the basis of Case 75-1358, and the issues raised herein differ from those raised in a separate appeal by Garcia. See United States v. Garcia, 526 F.2d 958 (5th Cir. 1976).

In a different indictment, returned by a grand jury of the Northern District of Texas, appellant was charged under the name Vincente Carrerra, along with Garcia and others, with conspiracy to distribute and to possess with intent to distribute heroin. ⁵ Following a later trial by jury on this indictment in Dallas, Texas, appellant was found guilty and sentenced to a ten-year term of imprisonment to run consecutively to the sentence imposed in Laredo, plus a three year special parole term. The appeal from the Dallas conviction ⁶ forms the basis of Case 76-1197, and will be considered in conjunction with the Laredo appeal due to the interrelated issues involved.

THE FACTS

The nature of the assigned errors makes it necessary to understand the basic facts underlying the indictments. The conspiracy charged in the Dallas indictment concerned a variety of drug activities between January and June of 1974. There is no indication, however, that appellant was in any way connected with any of these activities or the co-indictees prior to May 29 of that year. Gonzalo Marquez, a government informant and one of the two principle government witnesses, had arranged to meet Garcia on May 29 at the Woolco parking lot in Laredo for the purpose of buying one pound of heroin from Garcia. On the morning of May 29, Marquez and Drug Enforcement Agency (DEA) Agent Gilberto Alvarez drove from Dallas to Laredo, followed in another automobile by two other DEA agents. Marquez and Alvarez arrived at the designated meeting place about 6:00 p. m. and about fifteen minutes later Garcia arrived in a pick-up truck being driven by appellant. Agent Alvarez testified that Marquez and Garcia exited their respective vehicles and met between the two vehicles and that appellant then joined them, being introduced by Garcia to Marquez as "Chente". According to Alvarez, Garcia and Marquez discussed the details of a one pound transfer of heroin which was to occur later that evening and a future delivery of additional heroin. Garcia stated the one pound was ready for delivery and that he had brought a sample. Appellant then reached into the pick-up truck through a window and produced a small packet which he handed to Garcia who in turn handed it to Marquez. Everyone left the scene. Alvarez further testified that after field testing the substance Marquez telephoned Garcia who said that "Chente" (appellant) would obtain the drugs and that they would meet at the parking lot at 8:00 p. m. that night to complete the transaction. Alvarez and Marquez returned to the rendezvous point at the scheduled time. About ten minutes later, Garcia arrived on a motorcycle driven by Gonzalez. Garcia got off the motorcycle and directed Gonzalez to drive away a short distance and act as a lookout. Gonzalez left, and Garcia then reached into his pants and produced a package containing one pound of heroin, which he handed to Alvarez. Garcia then motioned to appellant who came back and picked him up.

During the next few days, Marquez and Garcia had several phone conversations concerning the purchase of the additional heroin. On June 4, 1974, Marquez and Garcia arranged to meet in the same parking lot after appellant obtained the drugs. About 4:00 p. m. that afternoon, Marquez went to the meeting and saw Garcia arrive in an automobile driven by appellant. Only having one of three kilos promised, appellant told Marquez that he was making arrangements to bring the remainder to Dallas. Garcia delivered one package of heroin to Marquez and then he and Marquez drove to Dallas in Marquez's automobile. Several times during the journey they stopped and Garcia called appellant because, according to Garcia, appellant was securing the remaining drugs and delivering them to Dallas. In the last call, appellant supposedly told Garcia to bring the money back to Laredo and the two kilos would be transferred there. Garcia was arrested after the men arrived in Dallas. DEA agents arrested appellant at his home in Laredo on the evening of June 5.

At the Laredo trial, Garcia and appellant took the stand in their own behalf. Their testimony varied from that of Alvarez about the first Woolco meeting at 6:00 p. m. Appellant testified that at the 6:00 p. m. meeting, neither he nor Garcia got out of the pick-up and denied that he had reached into the pick-up or had ever handed a package to Garcia. Appellant also said that he gave Garcia two rides as a favor to a neighbor, but that he did not know Garcia was in possession of narcotics or that the meetings in the parking lot had anything to do with drugs.

Garcia, whose defense was entrapment, corroborated appellant's testimony. Garcia admitted that at the 6:00 p. m. meeting, he delivered a sample of heroin to Marquez, but denied that appellant had handed it to him. Garcia also testified that he never told appellant that he had heroin in his possession or that the purpose of the trips to Woolco was connected with narcotics traffic.

The testimony of appellant was in part corroborated by Lance T. Wade, a government witness. Wade was a DEA agent who had the 6:00 p. m. Woolco meeting under surveillance. Wade, contrary to the testimony of Alvarez, testified that at the 6:00 p. m. meeting, Gonzalez and Garcia never got out of the pick-up truck.

There is also conflicting testimony as to the events that followed appellant's arrest. DEA Agent Laurel stated that after the arrest and again later that evening in the DEA office he read appellant in Spanish the full panoply of Miranda rights and that appellant, in response to Laurel's interrogation, incriminated himself by admitting that when he transported Garcia to the Woolco parking lot on the motorcycle at 8:00 p. m. (May 29) he knew Garcia was illegally in possession of narcotics. On the other hand, appellant denied that he had ever been advised of any of his constitutional rights, denied saying that he was aware that Garcia possessed narcotics on their trips to Woolco a few days before, and that he had requested but was denied permission to call his attorney.

CONFESSION HEARING

The issue presented by the appeal from the Laredo indictment and trial is whether the trial court erred by not conducting a hearing out of the jury's presence to determine the admissibility of appellant's incriminating statements, pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

When the government counsel first sought to elicit from Agent Laurel the statements appellant made while in custody on June 5, appellant's attorney objected as follows:

"I am going to object to any testimony this witness may give on the grounds that the defendant was not taken before a magistrate immediately upon being arrested, and that any admissions he might have made would be inadmissible."

Appellant concedes that the objection does not by itself clearly indicate that he was complaining that Agent Laurel failed to comply with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but submits that the court's response indicates that this was its interpretation of the objection. The court had replied: "I think if he was thoroughly warned, it would be admissible. You may go forward." Appellant's attorney did not contest the court's interpretation of his prior objection and both sides proceeded to question Agent Laurel and appellant about the warnings. At the conclusion of the trial, the court gave a lengthy jury instruction on the Miranda question without objection from counsel. ⁷ Thus, appellant argues, the trial court and counsel were apparently aware that appellant had interposed a Miranda objection to the confession, and thus the court's failure to conduct a hearing, without the jury present, to determine the agent's compliance with Miranda and the appellant's waiver of his constitutional rights violated the Supreme Court's mandate in Jackson v. Denno, supra, and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Based on the lack of any such hearing, appellant believes he is entitled to a new...