556 F.2d 1359 (5th Cir. 1977), 76-2172, United States v. Palacios

Docket Nº:76-2172.
Citation:556 F.2d 1359
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Regino PALACIOS, Defendant-Appellant.
Case Date:August 08, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1359

556 F.2d 1359 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Regino PALACIOS, Defendant-Appellant.

No. 76-2172.

United States Court of Appeals, Fifth Circuit

August 8, 1977

Page 1360

Oscar J. Pena, Laredo, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., George A. Kelt, Jr., Asst. U. S. Atty., Houston,

Page 1361

Tex., Rene J. Gonzalez, Asst. U. S. Atty., Laredo, Tex., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GODBOLD, SIMPSON and GEE, Circuit Judges.

SIMPSON, Circuit Judge:

The indictment below was against the appellant Regino Palacios and a co-defendant, Cecilia Garcia. Palacios was charged with (1) conspiring with Garcia to possess marijuana with intent to distribute it, in violation of 21 U.S.Code, §§ 841(a)(1) and 846; and (2) aiding and abetting Cecilia Garcia in the possession of 100 pounds of marijuana with intent to distribute, in violation of 21 U.S. Code, § 841(a)(1), and 18 U.S.Code, § 2. The conspiracy count charged several overt acts in furtherance of the conspiracy, committed by Palacios or Garcia or both. Cecilia Garcia was tried separately and found guilty by a jury.

Palacios had three jury trials, the first two resulting in mistrials. 1 In the third trial, the court denied appellant's motions for judgment of acquittal. The third jury convicted Palacios on both charges. The trial court sentenced him to consecutive 5 year confinement terms to be followed by a special parole term of 5 years on each count.

While Palacios raises a number of issues 2 on appeal, we believe that the second point urged, the insufficiency of the evidence, presents the most serious attack on the convictions. We conclude from our study of the record in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), that we should reverse on this ground. Accordingly, we find it unnecessary to reach the other six issues.

I. THE UNDERLYING FACTS

On September 9, 1975, Leonard Williams, an agent with the Drug Enforcement Administration (DEA) was prompted by a phone call from an informer to establish surveillance of various travel bureau offices in downtown Laredo, Texas. He instructed Special DEA Agent George Tomlinson to attempt to locate Regino Palacios and a young female named Cecilia wearing pink slacks and a pink blouse. On this same day, Cecilia Garcia, who fit the above description, embarked on a trip to visit her mother in St. Paul, Minnesota, via Chicago, Illinois. She took a taxi to a Phillips 66 gas station where, after some delay, the travel bureau van going to Chicago picked her up. Her baggage was placed on top of the van. The van then proceeded to the Transportes Hispanos Travel Agency office in Laredo, with DEA agents keeping Garcia and the van under surveillance. The next stop was a restaurant called "El Taquito Millonario No. 2" where more passengers were picked up. Here, the appellant Palacios was seen talking to Cecilia Garcia. Finally, the van left Laredo travelling north on Interstate 35 (commonly known as the San Antonio Highway). Agents of the Immigration and Naturalization Service halted the van at a Border Patrol permanent check-point approximately eleven miles north of Laredo. The driver was ordered to unload the baggage from the roof of the van and all

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passengers were asked to claim their baggage. All baggage was claimed except three suitcases and a Schlitz beer carton box. When the driver was questioned about the ownership of the unclaimed luggage, he pointed to co-defendant Cecilia Garcia. Garcia denied ownership. The agents opened this luggage and found 100 pounds of marijuana. At this point, a DEA agent read the Miranda warning to Garcia and arrested her. The DEA agents then questioned her about the appellant and the suitcases filled with marijuana. An address book found in Garcia's purse contained a Chicago address and telephone number in the appellant's handwriting. During this time, Palacios drove past the checkpoint in a maroon van. His arrest followed in a short time. Garcia was subsequently taken to the DEA offices for further questioning. At this time she signed an unsworn statement which caused much confusion at appellant Palacios' trial.

At the third trial the government called Garcia as its first witness. After asking her name, age, and place of birth, government counsel next asked her if she is the same Cecilia Garcia who was indicted and found guilty of possessing marijuana and of conspiring with the appellant to do so. During this direct examination, Garcia admitted having a very close relationship with the appellant. She stated that she considered herself to be his common law wife. Government counsel then began to question Garcia regarding the three page statement she gave to the DEA agents after she was arrested and searched on September 9, 1975. She admitted making the statement, but she denied the truth of much of it. Government counsel went through the statement line by line and had Garcia read most of it aloud in court. She claimed that she had lied in the prior statement because she wanted to take revenge against Palacios for hurting her. 3 Garcia admitted that the Chicago address in her address book was in appellant's handwriting, that she had seen him the...

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