600 F.2d 1098 (5th Cir. 1979), 78-5480, United States v. Delval

• Date: 13 August 1979
• Citation: 600 F.2d 1098
• Docket Number: 78-5480.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Raymond DELVAL and Humberto Valenzuela-Maese, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1098

600 F.2d 1098 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

William Raymond DELVAL and Humberto Valenzuela-Maese,

Defendants-Appellants.

No. 78-5480.

United States Court of Appeals, Fifth Circuit

August 13, 1979

Page 1099

Richard M. Lovelace, El Paso, Tex. (Court-appointed), for Valenzuela-maese.

Charles L. Roberts, Joseph Chagra, El Paso, Tex., for Delval.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GOLDBERG, AINSWORTH and KRAVITCH, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellants William Delval and Humberto Valenzuela-Maese were convicted after a jury trial of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 ¹ and of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ² Appellants assign errors pertaining to the constitution of the jury, alleged to have been tainted by the presence on the venire of a former confidential informer; they also contend that the evidence was insufficient to support their convictions, except that appellant Valenzuela does not challenge the sufficiency of the evidence as to his conviction for possession. We affirm the convictions.

Facts :

1. The Marijuana Transaction

   Early in April 1978 Norman Smith, a Drug Enforcement Administration (DEA) informant, had several conversations with appellant Valenzuela in El Paso, Texas, regarding the purchase of a quantity of marijuana. Valenzuela indicated that he anticipated the arrival of some marijuana at any time. On April 14 Valenzuela called Smith to report that he had obtained some marijuana and, after receiving authorization from DEA Special Agent Fred Wendt, Smith subsequently agreed to purchase about 300 pounds. Valenzuela said that this quantity would present no problem as he had about 600 pounds available.

   Smith and Valenzuela arranged for Smith to pick up a sample at Valenzuela's house that evening. Valenzuela went to Smith's house early the next morning to ascertain whether the quality of the "kilo brick" sample was satisfactory. At that time Smith and Valenzuela agreed upon a price of $70 per pound. Valenzuela had 100 pounds of marijuana with him that he wanted to transfer immediately; however, Smith did not want to have marijuana at his house with his wife and children present. Smith proposed to consummate the deal in a parking lot at about 7 o'clock that evening, but Valenzuela wanted to make the exchange by 2 p. m. He further stated that he would need a vehicle to transport the marijuana.

   After consulting with Agent Wendt, Smith called Valenzuela at home to report that he would procure a car and pick him up at about 2 o'clock. Accordingly, Smith picked up Valenzuela in a rented car supplied by the DEA, and Valenzuela then left Smith at Hector's Pancake House where Smith was to wait while Valenzuela got the marijuana at a friend's house. When Smith asked if the drugs were at "Danny and Bill's house," Valenzuela answered in the negative.

   Page 1100

   Valenzuela proceeded to the house at 300 Pageant Street where he backed the rented car into the garage; the garage door was then closed. Several minutes later the garage door reopened, Valenzuela drove the car out, and a person who appeared to be wearing a pair of shorts closed the garage door. DEA agents were unable to identify this individual. Early that morning an agent surveilling the house had seen Valenzuela's car parked there.

   When DEA agents stopped Valenzuela several blocks from 300 Pageant Street, they discovered 318 pounds of marijuana in plastic garbage bags in the passenger compartment and trunk of the car. Valenzuela stated at that time that he was ignorant of the contents of the bags, having received $100 simply to pick up the car, drive it to Pageant Street and then deliver the car and the bags to the San Jacinto Plaza in El Paso.

   After arresting Valenzuela, the DEA agents procured a search warrant for the house at 300 Pageant Street. Meanwhile, other agents had maintained surveillance at the house in order to ensure that no one leave with any evidence. The only person to enter the house during this period was Danny Bruce ³ who used a key to open the front door; no one left the house. Approximately five minutes after Bruce's arrival, the DEA agents proceeded to execute the search warrant. Agent Wendt broke in the door, having received no response when he knocked and announced his authority as a federal agent with a search warrant.

   Wendt found appellant William Delval in the kitchen dressed in a bathing suit and both Delval and Bruce were placed under arrest. There were no other persons in the house. At the time Delval was arrested there were in plain view in the kitchen several bags of marijuana as well as a "Mary Gin," a device used for refining marijuana. Roughly 205 pounds of marijuana were discovered in a corner of the garage together with some empty garbage bags similar to those in which the marijuana being transported by Valenzuela had been packaged. The agents also found a triple beam scale, a bench beam scale, and a vacuum cleaner containing marijuana seeds and other residue in the garage. Delval went to one of the bedrooms to get dressed before being taken away.

2. The Jury Selection

   The jury in this case was selected on June 2, 1978 and the case came to trial on June 13. The 93-man venire from which the jury that tried appellants was chosen had been convened on April 10, 1978 and included David Markland, a former confidential DEA informant who testified in an earlier, unrelated case. Markland had nothing whatever to do with appellants' case, and he was immediately excused from the panel from which the jury in the instant case was to be selected as were all jurors who had heard Markland testify in the earlier trial. Defense counsel contended, however, that Markland's presence on the jury venire raised the possibility that Markland may have had conversations with other members of the panel which might have affected their ability to be fair and impartial. Defense counsel contended that the proper means for dealing with the possibility that the venire had been tainted was either to quash the jury venire entirely and await the convening of a new venire to try the case or to conduct a hearing at which prospective jurors would be individually questioned regarding their possible communications with Markland concerning his activities as an informant.

   The district court declined to pursue either of these options fearing, with regard to the latter suggestion, that the effort to uncover any possible taint could itself give rise to prejudice where none had previously existed. Prior to denying the defendants' motion to quash the jury panel, the district court observed:

   Well, you might want to suggest to me as to how I might go about finding the taint. It would be impossible to do it

   Page 1101

   without tainting, and the Court has no reason to believe that there is a taint, but will watch it very carefully . . . . ⁴

   Counsel for the defendants did not suggest any means by which the court could conduct such an inquiry without thereby tainting the jury. ⁵

   The district court did, however, conduct an extensive examination of the prospective jurors during voir dire, asking specifically about their prior service in drug and other cases and their attitudes toward drug offenses generally in order to guard against any bias or prejudice toward the defendants herein. Several jurors were excused during voir dire when, in response to the court's questions, they indicated that they could not be entirely fair and impartial. At the conclusion of the jury selection, appellants' counsel stated that, aside from the court's refusal to inquire about each juror's possible contact with Markland, they were satisfied with the jury as selected. Appellants exercised none of their peremptory challenges. At the start of the trial on June 13, the district court denied appellants' renewed motion for a mistrial based on Markland's presence in the original venire. At no time, however, have appellants alleged that any impermissible communication between Markland and the jurors in this case actually occurred; rather appellants assert only that Markland's presence in...