565 F.2d 1323 (5th Cir. 1978), 77-5019, United States v. Carrillo

Docket Nº:77-5019.
Citation:565 F.2d 1323
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Conrado Gillie CARRILLO and Ernest Pete Montoya, Defendants-Appellants.
Case Date:January 10, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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565 F.2d 1323 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Conrado Gillie CARRILLO and Ernest Pete Montoya,

Defendants-Appellants.

No. 77-5019.

United States Court of Appeals, Fifth Circuit

January 10, 1978

Lucien B. Campbell, Federal Public Defender, C. Larry Mathews, Jr., Asst. Federal Public Defender, El Paso, Tex., for Carrillo.

Roddy L. Harrison, Pecos, Tex. (Court-Appointed), for Montoya.

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Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Ronald P. Guyer, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

GEWIN, Circuit Judge:

Conrado Gillie Carrillo and Ernest Pete Montoya were found guilty by a jury and convicted for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and for importation of that heroin into the United States from the Republic of Mexico in violation of 21 U.S.C. § 952(a).

Both defendants challenge the sufficiency of the evidence to support their convictions. In addition Montoya claims reversible error in the trial court's failure to grant a mistrial because of allegedly prejudicial testimony elicited by the prosecutor from a government witness. We affirm.

I FACTS

On June 28, 1976, defendants, who were traveling from Ojinoga, Mexico, entered the United States through the port of entry at Presidio, Texas. Montoya was driving a 1976 Oldsmobile Cutlass. Carrillo occupied the front passenger's seat. The vehicle stopped at the Customs Office and the occupants were questioned by Customs Officer Short concerning their citizenship and whether they had anything to declare. Defendants replied that they were U. S. citizens and had liquor that they were bringing in from Mexico.

While questioning defendants the officer noticed that Carrillo was extremely nervous. He fidgeted in his seat, fluttered his eyelids, and moved his hands rapidly. As a result of these observations Officer Short ordered the vehicle into the area for secondary inspection. There defendants stated that they had traveled to Ojinoga to visit a relative. During Officer Short's inspection of the car, Carrillo, who continued his nervous behavior, requested that he be allowed to take the liquor to the liquor control authorities to pay the state tax. Officer Short noticed that when Carrillo left the inspection area his nervousness diminished.

The inspection of the vehicle revealed some electrician's tape in the glove compartment. In light of this discovery and Carrillo's nervous behavior, the officer took the defendants to the Customs Office for a search of their persons. The search revealed a .25 caliber pistol hidden in Carrillo's right boot and a clip with .25 caliber shells in Montoya's front left pocket. This clip fit the pistol found on Carrillo. Each defendant had track marks on both arms which appeared to be recent.

Following this search of defendants' persons, Officer Short conducted a more thorough search of their car. Beneath the front console of the car, between the driver's and passenger's seat, the officer located a packet wrapped in black electrician's tape which was found to contain heroin. At this time the officer placed both men under arrest. Defendants denied any knowledge of the heroin's presence, although Carrillo was so nervous that his denial was almost unintelligible.

Officer Short then returned to the vehicle and investigated the right side of the console on the passenger's side and discovered a much larger packet of heroin, wrapped like the first in electrician's tape. During the completion of the search Montoya asked the officer, "Who told you it was there?" The officer replied that no one told him it was there; that he had just found it. Montoya continued, "Somebody told you it was there. Who was it?"

The automobile used by the defendants was found to have been rented by one Clarence Ramiro on June 26, 1976, in Albuquerque, New Mexico. Mr. Ramiro was acquainted with both appellants; with Montoya since 1969 and with Carrillo, whose sister he dated, for about the same length of time. Shortly after he rented the car, Ramiro left it at Montoya's apartment and gave him the keys. Ramiro had a date with Carrillo's sister Irene and had gone to Montoya's apartment to leave her baby there. No

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permission was granted to take the car to Mexico.

It was later determined that the large packet contained one hundred two and one-half grams or less than four ounces of 56% pure heroin, while the small...

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