573 F.2d 366 (5th Cir. 1978), 77-5813, United States v. Dominguez

Docket Nº:77-5813
Citation:573 F.2d 366
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ervey Tony DOMINGUEZ, Defendant-Appellant.
Case Date:May 22, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 366

573 F.2d 366 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ervey Tony DOMINGUEZ, Defendant-Appellant.

No. 77-5813

[*]

United States Court of Appeals, Fifth Circuit

May 22, 1978

Lee A. Chagra, Joseph S. Chagra, El Paso, Tex., for defendant-appellant.

Kenneth J. Mighell, U. S. Atty., Shirley Baccus-Lobel, John W. Sweeney, Jr., Asst. U. S. Attys., Fort Worth, Tex., for plaintiff-appellee.

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

Before BROWN, Chief Judge, COLEMAN and VANCE, Circuit Judges.

PER CURIAM:

On May 5, 1977, Lena Jiminez was arrested at the port of entry at Del Rio, Texas. She was carrying a package containing 7.25 ounces of cocaine. Jiminez testified at trial that on the evening of May 4, appellant approached her in a bar in San Angelo, Texas. He told her she could make $500 by traveling to Del Rio and helping him bring a package from Mexico. The next day appellant picked up Jiminez and Pablo Garcia. He told them to go to a particular motel and ask for James Hill, one of the coconspirators. The car for the trip belonged to appellant's girlfriend. Jiminez and Garcia went to Del Rio without the appellant. Garcia procured the cocaine in Mexico and had given it to Jiminez to bring it across the border when she was arrested.

Elvira DeLeon, appellant's girlfriend, testified that in the spring of 1977, she, appellant,

Page 367

Hill, and Hill's girlfriend, Karen Konze, met at her house and discussed obtaining cocaine from Colombia. Hill and Konze were to obtain the cocaine while appellant financed the operation. DeLeon's car was used for the drive to Del Rio. At the same time that Jiminez was apprehended, Hill and Konze were stopped at the border. His visa showed that Hill entered Mexico from Guatemala by vehicle. A roll of film seized from Hill had pictures of Medellin, Colombia, where cocaine is grown. Konze and Hill told DeLeon and appellant that they had seen Jiminez arrested with the cocaine they had obtained.

Appellant argues on appeal that the court erred in not giving a cautionary instruction, sua sponte, to the jury about the statements elicited from DeLeon and Jiminez that were admissible under the coconspirator exception to the hearsay rule. He admits that such an instruction was given in the court's charge. He also admits that he did not object to the...

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