U.S. v. Valenzuela

• Decision Date: 05 April 1979
• Docket Number: No. 78-1281,78-1281
• Citation: 596 F.2d 1361
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Guadalupe VALENZUELA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1361

596 F.2d 1361

UNITED STATES of America, Plaintiff-Appellee, v. Jose Guadalupe VALENZUELA, Defendant-Appellant.

No. 78-1281.

United States Court of Appeals Ninth Circuit.

April 5, 1979.

Rehearing Denied June 6, 1979.

Michael Nasatir, Los Angeles, Cal., for defendant-appellant.

David R. Hinden, Asst. U. S. Atty., Chief, Appellate Sec., Robert J. Perry, Asst. U. S. Atty., Donald M. Re, Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court For the Central District of California.

Before WALLACE and HUG, Circuit Judges, and EAST, ^* District Judge.

EAST, District Judge:

Jose Guadalupe Valenzuela (Jose) appeals his judgment of conviction and sentence to custody entered by the District Court on December 19, 1977 for violation of 21 U.S.C. § 846 (conspiracy), seven counts of violations under 21 U.S.C. § 841(a)(1) (trafficking in heroin), and for violation of 21 U.S.C. § 848 (continuing criminal enterprise). ¹ We affirm.

BACKGROUND FACTS:

The factual record reveals that the United States Drug Enforcement Administration conducted a long term national and international investigation to neutralize the so-called Valenzuela family organization, one of the major sources of Mexican heroin in the United States. The Valenzuela organization was responsible for the importation of vast quantities of heroin which were distributed to customers from Los Angeles, New York, and other cities. The organization was controlled and directed by Jose and his fugitive brother Fernando Valenzuela (Fernando).

A characteristic of the Valenzuela organization was the use of family members, related by blood or marriage, in the heroin distribution enterprise. A second characteristic of the organization was that it would provide bail to permit members who had been apprehended on heroin charges to flee and thereby avoid prosecution.

The Government offered the testimony of 55 witnesses, including five informants, and introduced more than 100 documentary exhibits and approximately 144 pounds of heroin. The evidence centered on ten different seizures of heroin made from members of the organization from 1973 through 1977. In addition, there was abundant evidence of the great wealth realized by Jose from trafficking in heroin.

FIRST SUPERSEDING INDICTMENT:

Jose was indicted along with nine family codefendants and a number of unindicted family members as follows:

Count 1 charged the defendants Jose, Fernando, Manuel Valenzuela (Manuel), Nicolasa Valenzuela (Nicolasa), Alleen Seja Valenzuela (Alleen), Mary Elizabeth Corley (Mary), Edgar Estephen (Edgar), Alonso Lizarraga (Alonso), Bernardina Lizarraga (Bernardina), Sergio Mendoza Rodriguez (Sergio), and 22 unindicted family members with conspiracy to commit offenses against the United States (§ 846 and § 841(a)(1));

Count 2 charged two unindicted family members with heroin trafficking (ten ounces) and the defendants Jose and Fernando as aiders and abettors thereto (§ 841(a)(1) and 18 U.S.C. § 2); ²

Count 3 charged one unindicted family member and defendant Manuel with heroin trafficking (six ounces) and the defendant Jose as an aider and abettor thereto (§ 841(a)(1) and § 2);

Count 4 charged three unindicted family members with heroin trafficking (2.2 pounds) and the defendants Jose and Fernando as aiders and abettors thereto (§ 841(a)(1) and § 2);

Count 5 charged two unindicted family members and the defendant Alleen with heroin trafficking (4.4 pounds) and the defendants Jose and Fernando as aiders and abettors thereto (§ 841(a)(1) and § 2);

Count 6 charged four unindicted family members with heroin trafficking (44 pounds) and the defendants Jose and Fernando as aiders and abettors thereto (§ 841(a)(1) and § 2);

Count 7 charged two unindicted family members with heroin trafficking (44 pounds) and the defendants Jose and Fernando as aiders and abettors thereto (§ 841(a)(1) and § 2);

Count 8 charged the defendants Jose, Mary, Edgar, Alonso, Bernardina, and Sergio with heroin trafficking (four pounds) (§ 841(a)(1)); and

Count 9 charged Jose, in concert with at least five other persons with whom Jose acted as organizer, supervisor, and manager, with a continuing series of violations, obtaining therefrom substantial income and resources as alleged in Counts 1 through 8 (§ 848).

JURY VERDICTS AND SENTENCE :

The jury found the following defendants guilty on all counts as respectively charged:

Jose (Counts 1 through 9);

Manuel (Counts 1 and 3);

Mary (Counts 1 and 8);

Bernardina (Counts 1 and 8);

Alonso (Counts 1 and 8);

Alleen (Counts 1 and 5); and

Nicolasa (Count 1).

Jose was sentenced to 15 years imprisonment on each of Counts 1 through 8 and to life imprisonment on Count 9. The sentences on Counts 1 through 4 were imposed consecutively (total 60 years), and the sentences on Counts 5 through 8 were also imposed consecutively (also 60 years). The two 60-year terms were imposed to run Concurrently with the term of life imprisonment. The life sentence, pursuant to § 848(c), is without possibility of suspension of sentence, probation or parole.

APPEAL OF THE DEFENDANTS :

All of the convicted defendants, except Alleen and Nicolasa, have appealed. The appeals of Manuel, Alonso, Bernardina, and Mary are treated in a separate opinion by this Court entered in United States v. Valenzuela, on March 23, 1979, 596 F.2d 824 (9th Cir. 1979).

ISSUES :

Jose presents six specific issues on review, of which we deem the following three to be dispositive of this appeal:

1. Whether the offenses charged in Counts 1 through 8 of the indictment merge in the conviction on Count 9, requiring that the judgments and sentences entered thereon be vacated and that the matter be remanded for resentencing.

2. Whether the search warrant executed August 9, 1977 at 736 Helmsdale Avenue, Valinda, California was constitutionally insufficient and was improperly executed, and whether the officers' entry into the adjoining garage was improper under California law.

3. Whether the provisions of § 848 are void as unconstitutionally vague or ambiguous.

DISCUSSION :

Issue 1 :

Jose relies on Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), for the proposition that both his Count 1 § 846 conspiracy charge and his Counts 2 through 8 § 841(a)(1) substantive charges are lesser included offenses of his Count 9 § 848 continuing criminal enterprise charge. Accordingly, he argues that the convictions on the lesser charges merge into the § 848 conviction and that the case must be remanded for resentencing because he was sentenced to custody on each of those counts.

Jeffers was convicted for violations of § 846 and § 848, and the District Court levied monetary fines upon each of those convictions. The aggregate of the monetary fines of each of those two convictions exceeded the maximum amount of a permissible fine under § 848. In Jeffers, the Supreme Court opined at 155:

"The first issue to be considered is whether Congress intended to allow cumulative punishment for violations of §§ 846 and 848. We have concluded that it did not . . . ."

Thereupon the cumulative monetary fines were reduced to the extent that the same exceeded the maximum fine permissible under the criminal enterprise statute.

In Jose's case, the sentences imposed on his convictions of the conspiracy and substantive charges were made concurrent with his life sentence on the criminal enterprise conviction. Jose's resentencing argument is without merit due to the absence of any excessive cumulative punishment effect. See United States v. Davis, 548 F.2d 840, 845 (9th Cir. 1977). The imposition of concurrent sentences does not affect Jose's chances of parole, Cf. Audett v. United States, 265 F.2d 837, 848 (9th Cir. 1959), because the life sentence under the continuing criminal enterprise section is not subject to parole. Section 848(c). See also Bradley v. United States, 410 U.S. 605, 611, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973); O'Neal v. United States, 332 F.2d 152, 153-54 (9th Cir. 1964), and United States v. Gudino, 432 F.2d 433, 434 (9th Cir. 1970). In Jeffers, Justice Blackmun restricted his discussion to the imposition of cumulative monetary fines. In fact, while Consecutive prison sentences had been imposed for the conspiracy and criminal enterprise convictions, Justice Blackmun specifically noted that the consecutive sentences did not raise the cumulative punishment issue as the monetary fines did because of the unavailability of parole under the criminal enterprise statute. 432 U.S. at 155, n.24, 97 S.Ct. 2207.

Jose further contends that the Count 1 conspiracy charge is a lesser included offense of the Count 9, § 848, charge, and, therefore, may not be considered as a violation for the purposes of § 848. However, since the jury found Jose guilty as charged on all nine counts, we may disregard the jury's possible consideration of the Count 1 conspiracy charge in finding a continuing series of three or more violations on the part of Jose, as required by § 848.

Since we ultimately conclude that Jose's judgment of conviction under Count 9 and sentence to life custody is valid, we have no need to inquire into the propriety of other lesser or equal concurrent sentences since Jose's prison term under Count 9 will remain the same whatever the resolution of the other sentences might be. United States v. Walls, 577 F.2d 690, 699 (9th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978). See also United States v. Thomas, 586 F.2d 123, 131 (9th Cir. 1978).

Issue 2 :

This Court upheld the validity of the search warrant and the officer's entry thereunder into the Helmsdale residence while dealing with Bernardina's appeal. United States v. Valenzuela, 596 F.2d at 829. However, Jose's issue presents a somewhat more difficult problem because the officer making the entry apparently announced himself just as he entered the open outside door to the garage. Prior to his entry, he...