U.S. v. Renteria
| Citation | 625 F.2d 1279 |
| Decision Date | 18 September 1980 |
| Docket Number | No. 79-5325,79-5325 |
| Parties | 6 Fed. R. Evid. Serv. 1148 UNITED STATES of America, Plaintiff-Appellee, v. Joe RENTERIA, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Charles L. Roberts, El Paso, Tex., for defendant-appellant.
LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, GEWIN and POLITZ, Circuit Judges.
Joe Renteria was convicted by a jury of conspiracy to import cocaine, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1); conspiracy to import marijuana, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1); conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and conspiracy to possess marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On appeal Renteria challenges: (1) the allowance of evidence of an extrinsic offense to demonstrate intent; (2) the failure of the trial judge to rule on a motion to suppress; (3) the failure of the trial judge to conduct a Jackson v. Denno hearing on voluntariness of his confession; and (4) the permitting of the jury to hear portions of a tape recording which had not been played in open court and received in evidence. Finding merit in three of the challenges, we remand for appropriate hearings.
Renteria and five others were indicted on May 18, 1978, on four conspiracy counts. 1 Renteria was not taken into custody until September 30, 1978, at which time he was arrested for a traffic violation in Palm Springs, California.
His arrest was followed by a consensual search of his motel room. Two ounces of cocaine were found. After being given Miranda 2 warnings Renteria confessed to the charges. A question is raised whether he was improperly pressured into confessing.
Renteria testified at the trial. On direct examination he admitted using cocaine on a moderate scale but denied the conspiracy involving five pounds because defendants did not have the capability to finance that size transaction. The government introduced evidence about the two ounces found in Renteria's motel room and that this was a commercial quantity. Renteria acknowledged on cross-examination that cocaine was found in the search but insisted he knew nothing about it. The cocaine taken from the motel room was not a part of the cocaine referred to in the indictment.
Renteria pleaded entrapment on the marijuana counts and, in effect, pleaded factual impossibility on the cocaine counts.
Renteria contends that the admission of evidence about the seized cocaine was contrary to Fed.R.Evid. 404(b) and the Fourth Amendment exclusionary rule. Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In support of admissibility of the evidence, the government relies on our en banc decision in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Beechum enunciates a two-part test to determine admissibility of extrinsic offense evidence: 582 F.2d at 911. Relevance in the extrinsic offense arena is a function of similarity which 582 F.2d at 911.
Finally, pertinent to our present inquiry, we stated in Beechum : "Where the issue addressed is the defendant's intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant's indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses." Id. at 911.
Applying the Beechum test we conclude that the evidence of the extrinsic offense was properly admitted.
The extrinsic offense was the possession of a commercial quantity of cocaine. The charged offenses were conspiracy to import cocaine, conspiracy to distribute cocaine, conspiracy to import marijuana, and conspiracy to distribute marijuana. It is not necessary that the extrinsic offense involve conspiracy when the charged offense is conspiracy. United States v. McMahon, 592 F.2d 871 (5th Cir. 1979), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289. It is sufficient if the extrinsic offense is similar to the substantive offense at the core of the conspiracy. Possession of a commercially saleable amount of cocaine is relevant evidence of an intent to deal in illicit drugs. The similarity with the intent required for proof of importation or distribution as charged cannot be gainsaid.
The second part of the Beechum test is whether prejudice outweighs probative value. Renteria conceded intent by arguing entrapment and impossibility. May the government nonetheless introduce evidence of the seized cocaine to show intent? In United States v. Roberts, 619 F.2d 379 (5th Cir. 1980), we held that in a conspiracy case, the government may introduce extrinsic offense evidence during its case in chief to prove intent, reasoning that, although in the end the defense might choose not to contest the issue of intent, the government has no way of knowing that when it presents its case in chief. Such proof would have to be offered during the case in chief because if the defendant offered no evidence there would be no opportunity to offer evidence in rebuttal. This case is similar. Although in the end Renteria conceded intent on the marijuana counts by arguing entrapment, and effectively conceded intent on the cocaine counts by arguing impossibility, the government could not know that with certainty when it presented its case in chief. We conclude that the evidence of the extrinsic offense has obvious probative value that is not outweighed by the danger of undue prejudice and that such evidence meets the other requirements of Fed.R.Evid. 403. Unless barred by the Fourth Amendment challenge, this evidence was properly admitted.
Prior to trial Renteria moved to suppress evidence of the cocaine found on his person at the time of his arrest and during the search of his motel room after his arrest. Fed.R.Crim.P. 41(f). The trial judge did not rule on this motion before trial, nor did he specifically defer a ruling until or after trial. Fed.R.Crim.P. 12(e) requires that he do one or the other. At trial Renteria orally moved to suppress his confession. Again there was no ruling. The government argues that even if the cocaine was illegally seized it would still be admissible for purposes of impeaching Renteria, therefore the failure by the trial judge to rule on the motions is not reversible error. Even if evidence of the cocaine was admissible for impeachment under United States v. Havens, --- U.S. ----, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), a question that we do not now reach, there remains the inquiry whether Renteria's confession is "poisoned fruit" because of the claimed constitutional violation. These issues must first be addressed by the district court and therefore a remand is mandated. 3
The trial court did not consider whether Renteria's confession was voluntary. His counsel did not raise the issue. On appeal Renteria contends that his testimony raised the issue and that the district court erred in failing to provoke the determination sua sponte. 4
Renteria testified that after his arrest, DEA Agent Moren told him that he could remain in prison for the rest of his life, but that the government would go easier on him if he talked. Renteria refused to talk. Agent Moren returned the next day and told Renteria that his mother was on her deathbed, that Renteria had ruined her life, and that if Renteria did not confess, his mother would be arrested for harboring him as a fugitive. The government disputes this version.
In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), 5 the Supreme Court held that when there is a factual issue about the voluntariness of a confession, the trial court must make a determination of voluntariness, including the resolution of any relevant disputed facts. Ordinarily, if the issue is not raised by the defendant it is waived. Compare Black v. Beto, 382 F.2d 758 (5th Cir. 1967) (issue raised) with United States v. Gonzalez, 548 F.2d 1185 (5th Cir. 1977) (issue not raised).
The trial court, however, must raise the issue on its own motion when the evidence clearly reflects a question of voluntariness. United States v. Gonzalez, 548 F.2d at 1190 (dictum); United States v. Powe, 591 F.2d 833 (D.C.Cir.1978). Involuntary confessions, about which the court is alerted, should not be admitted in evidence merely because of defense counsel's oversight or incompetence. Renteria's testimony pointedly raised the issue of voluntariness. It was plain error, Fed.R.Crim.P. 52(b), to fail to hold a Jackson v. Denno hearing. We remand for a hearing on the issue of voluntariness. If the trial court finds that the confession was voluntary, the error was harmless. United States v. Hathorn, 451 F.2d 1337 (5th Cir. 1971).
The...
To continue reading
Request your trial
-
U.S. v. Brantley
...Murray's conviction will stand. In the interest of judicial economy, we follow the procedure utilized in United States v. Renteria, 625 F.2d 1279, 1284 (5th Cir.1980), and United States v. Preston, 608 F.2d 626, 640 n. 19 (5th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2......
-
U.S. v. Wood
...665 F.2d 877, 885 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Cf. United States v. Renteria, 625 F.2d 1279, 1284 (5th Cir.1980) (remanding to district court for determination of whether extrinsic material was prejudicial). Similarly, the government's c......
-
U.S. v. Kopituk
...the case," 43 is he entitled to exclusion of the evidence. 619 F.2d at 383. 44 Bulman, supra, 667 F.2d at 1382; United States v. Renteria, 625 F.2d 1279, 1282 (5th Cir. 1980). The decision in Roberts was based upon the unique difficulty of proving intent in a conspiracy case, where it must ......
-
U.S. v. Janoe
...v. Denno, supra, 378 U.S. at 368, 84 S.Ct. 1774, and has been followed in direct federal appeals. See, e.g., United States v. Renteria, 625 F.2d 1279, 1283 (5th Cir.1980). Only if the trial judge on remand finds that the confession was voluntary 17 will the initial failure to hold a Sec. 35......