U.S. v. Reynoso-Ulloa

• Decision Date: 25 January 1977
• Docket Number: Nos. 76-1466 and 76-1500,D,REYNOSO-ULLO,s. 76-1466 and 76-1500
• Citation: 548 F.2d 1329
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Wayne MUMMERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1329

548 F.2d 1329

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo REYNOSO-ULLOA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Wayne MUMMERT, Defendant-Appellant.

Nos. 76-1466 and 76-1500.

United States Court of Appeals Ninth Circuit.

Jan. 25, 1977.

Lewis A. Wenzell (argued), San Diego, Cal., for defendant-appellant in 76-1466.

Peter J. Hughes (argued), San Diego, Cal., for defendant-appellant in 76-1500.

Stephen G. Nelson, Asst. U. S. Atty. on the brief, Terry J. Knoepp, U.S. Atty., Stephen G. Nelson, Asst. U.S. Atty., argued, San Diego, Cal., for plaintiff-appellees in 76-1466 and 76-1500.

Before CHAMBERS and MERRILL, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Appellants were convicted on eight counts of an indictment charging appellants and four co-defendants with distribution of heroin, possession with intent to distribute, use of the telephone to facilitate distribution, and conspiracy, in violation of 21 U.S.C. §§ 841, 843, 846, 952, 960 and 963. The charges arose from a conspiracy to smuggle heroin from Mexico and distribute it in the United States. Both appellants raise the issue of entrapment and the propriety of the entrapment instructions. Appellant Mummert additionally contends that alleged perjury by a Government informant and prejudicial testimony given by a Government agent require reversal of his conviction.

Statement of Facts

The critical issues on appeal center on the activities of Michael Sheen, a Government informant who had previously worked for the Drug Enforcement Administration (DEA) in Seattle, Washington. Sheen had worked with DEA agents Flego and Zweiger in "making" a number of drug cases in the Seattle area. Following threats on his life, in April, 1975, Sheen moved to California where he secured a job selling cars at a Ford dealership owned by Mummert. Sheen became friendly with Mummert and through him met Reynoso-Ulloa (Reynoso) who with his brother operated a car dealership in Tijuana, Mexico.

As Sheen became better acquainted with Reynoso and their "similar interests" became apparent, they began to discuss the smuggling of heroin. ¹ About mid-May, 1975, Sheen contacted agents Flego and Zweiger, informed them of Reynoso's involvement in heroin traffic, and asked them if they would be interested "in doing a large amount of heroin in the San Diego and Tijuana areas". The agents indicated their interest and Sheen continued his heroin discussions with Reynoso. ² Sheen told Reynoso that his father was the head of an organized crime family in Seattle which was seeking a new source of supply for narcotics. Initial negotiations were for one hundred pounds of heroin at a tentative price of $12,000 per pound. About August 3, Sheen called Flego to tell him that things were developing in the case, but that Reynoso and Mummert wanted to see if Sheen's father had the necessary.$1.2 million for the deal, and that Sheen and Mummert would be flying to Seattle to view the money.

During the time Sheen was negotiating with Reynoso, he was also negotiating with Mummert, although not in relation to heroin. Mummert had been forced to relocate his car dealership and needed $1,200,000 for the new facility, which he had been unable to obtain. Sheen suggested that a loan might be arranged through his father, who Sheen said was on the board of directors of a Seattle bank. Sheen told Mummert that the money was "dirty" in that no taxes had been paid on it. Mummert indicated that he could "launder" the money through Reynoso's connections in Mexico. With the view of obtaining a loan by laundering the dirty money, Mummert met Sheen and his "associates" in Seattle on August 7 and viewed the money. ³ After seeing the money, Mummert told Flego that laundering it would be no problem.

Shortly after their return from Seattle, Sheen and Mummert met with Reynoso, when Sheen mentioned the heroin deal in front of Mummert for the first time. Sheen told Mummert that the first priority for the use of the money was to purchase heroin, and that the heroin transaction had to occur before Mummert could get any money for his dealership. On cross-examination Sheen testified that Mummert indicated initial reluctance to becoming involved in the heroin transaction, saying "But I don't really want to be involved with that mess", but that later at the same meeting he agreed to participate. ⁴ Sheen and Mummert agreed to split ten per cent of the gross profits to be realized on the heroin transaction, which was to be invested in Mummert's dealership. A few days later, around mid-August, Sheen and Mummert were shown a sample of heroin by Reynoso in Tijuana. The following day Reynoso delivered the sample to Sheen in the presence of Mummert at Mummert's dealership.

Direct negotiations between the agents and appellants began on August 26, when Flego called and discussed with Reynoso the price, amounts, and delivery locations for kilogram quantities of heroin. During the call Reynoso admitted making prior heroin sales. In telephone conversations the following day, Flego and Reynoso agreed to meet in San Diego on August 28.

On August 28, Flego met Reynoso in San Diego and discussed with him the purchase of five to ten kilograms of heroin. Reynoso gave Flego another sample of heroin. Reynoso told Flego that he could supply as much heroin as Flego wanted, but delivered "piecemeal" over a period of time. The meeting ended with the understanding that Flego would contact Reynoso in a few days regarding payment and the exact amount of heroin desired. Flego talked with both Reynoso and Mummert by telephone on September 2. Mummert stressed the importance of the "deal" and said it had "to happen now". (Tr. 98-100).

On September 4, Flego and Zweiger flew to San Diego to meet Reynoso, Mummert, and Sheen. Before Reynoso arrived, Zweiger met Mummert and discussed with him the purchase of ten kilograms of heroin for $400,000. Mummert told Zweiger not to worry because he could trust Reynoso, who had been in heroin trafficking for a long time and was interested in doing business with the agents because they would be steady customers. ⁵ Upon Reynoso's arrival, he told the agents that he could deliver five kilograms of heroin the next day for $200,000. However, problems in the delivery of the heroin developed because, Reynoso said, his most trusted "mules" had gone to Las Vegas to make a delivery.

The following day, after more delays in delivery, the agents returned to Seattle after indicating to Reynoso their dissatisfaction with his operation. During the succeeding four days Sheen was supplied with two more heroin samples by Reynoso, who explained that they would be using a temporary alternate source until their original source returned to the border.

On September 10, Sheen and Carlos Toris, named as a co-defendant, arrived in Seattle to continue negotiations with the agents. Toris stated that he could deliver multi-kilogram quantities of heroin and admitted giving Reynoso the two heroin samples furnished to Sheen. Toris agreed to "front" a kilogram of heroin to the agents at Mummert's dealership on September 15.

On September 15, Flego and Zweiger met Sheen and Mummert at Mummert's dealership. About an hour later Rolando Gonzalez arrived with a kilogram of heroin. Mummert asked Flego what he thought of the heroin. ⁶ Flego responded that it didn't look good since "the mule had a blender in the front seat". ⁷ Mummert assured Flego that it would not happen again. This meeting broke up with the understanding that the agents would return to Seattle, test the heroin, and then make arrangements for payment. On September 17, Toris called Flego and Zweiger and agreed on a price of $20,000 for the kilogram of heroin to be paid to Reynoso.

On the afternoon of September 17, agents Flego and Zweiger returned to San Diego and again met with Mummert and Sheen. After renewing their objection to the inferior quality of the heroin, the agents were assured by Mummert that the quality would improve. Mummert explained that an organization called "Omega", consisting of organized crime figures in Mexico dealing in narcotics, was seeking to weed out small-time traffickers in order to maintain control, and that if Toris ever delivered another bad kilogram, the agents would have a chance to see Omega in action. That evening Mummert, Reynoso, Zweiger, and Flego continued to discuss future heroin deliveries. Reynoso assured the agents that Toris was only an interim source and promised them a five-kilogram heroin shipment within the next five days.

On September 19, Sheen phoned Flego that Reynoso and Mummert were ready to deliver one-and-a half kilograms of heroin. Mummert later delivered a sample and told Flego: "This is a sample of the kilo and a half you're going to get. It is better than what you bought from Toris and this is what our product is like." Shortly thereafter Reynoso arrived, and he, Mummert, Sheen, Zweiger and Flego went to a local lounge to finalize the transaction. While there, Reynoso told the agents that his people had just brought 300 pounds of morphine base from the interior of Mexico to a location outside Tijuana where it would be processed at a portable lab. The meeting ended with the agreement that Zweiger and the money ⁸ would stay with Mummert at the dealership, while Flego, Sheen, and Reynoso went to Los Angeles to take delivery of the heroin.

During the drive to Los Angeles, Reynoso told Flego that after a few more transactions, he would give Flego a number in Los Angeles to call and as many as five kilos would be provided on a two-day notice. Upon arriving in Los Angeles, Reynoso delivered the heroin to Flego and was arrested.

Zweiger and Mummert waited at the dealership until, subsequent to Reynoso's arrest, agents arrived and arrested Mummert. While waiting, Mummert asked Zweiger if he had seen the sample of heroin which Mummert had delivered to...