U.S. v. Gonzales-Palma, GONZALES-PALM

• Decision Date: 13 May 1981
• Docket Number: GONZALES-PALM,Nos. 80-1240,J,80-1242,s. 80-1240
• Citation: 645 F.2d 844
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Paulr., and Juan Gonzales-Garcia, Defendants- Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 844

645 F.2d 844

UNITED STATES of America, Plaintiff-Appellee, v. Edward Paul GONZALES-PALMA, Jr., and Juan Gonzales-Garcia,

Defendants- Appellants.

Nos. 80-1240, 80-1242.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Feb. 18, 1981.

Decided March 2, 1981.

Rehearing Denied May 13, 1981.

Philip A. Cherner, Denver, Colo., on brief for defendant-appellant Edward P. Gonzales-Palma, Jr.

Sylvian R. Roybal, Denver, Colo., for defendant-appellant Juan Gonzales-Garcia.

Daniel R. Christopher, Asst. U. S. Atty., Denver Colo. (Joseph Dolan, U. S. Atty., Denver, Colo., with him on brief), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Juan Gonzales-Garcia was convicted by a jury on four counts of participation in unlawful distribution of heroin and conspiracy to sell and distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Edward P. Gonzales-Palma, Jr., was convicted in the same trial on one count of participation in unlawful distribution of heroin and on one count of conspiracy to sell and distribute heroin. Each appeals his conviction, making different arguments on appeal. Since the cases were tried together, the appeals were consolidated in this Court.

80-1240

Edward P. Gonzales-Palma, Jr., urges in his appeal that it was error for the trial court (1) to instruct the jury that heroin is a Schedule I controlled substance as a matter of law, and (2) to refuse a jury instruction concerning accomplice testimony.

The government established that the substance sold in the transactions at issue was heroin, but made no attempt to show that heroin is a narcotic and did not ask the court to take judicial notice of the narcotic classification of heroin. The court ruled that the classification was a question of law and so instructed the jury. Gonzales-Palma argues the legal status of heroin is a question of fact that must be proven by judicial notice or otherwise at the trial and that the government's case was fatally defective for failure to offer this proof.

We find no merit in appellant's position on this issue. We agree with United States v. Porter, 544 F.2d 936, 940 (8th Cir. 1976), which responded to the same argument as follows:

"The defendant also contends that the trial court erred in denying his motion for a judgment of acquittal because the government adduced no proof that heroin is a Schedule I narcotic controlled substance. Whether or not the substance transferred is a Schedule I narcotic controlled substance is a question of law, not fact. The jury was properly instructed that heroin is a Schedule I controlled substance as a matter of law."

We have also held that failure to publish updated schedules listing heroin as a controlled substance does not result in its decontrol. "Those substances, unless removed by action of the Attorney General, (continue) to be controlled substances regardless of publication." United States v. Huerta, 547 F.2d 545, 547 (10th Cir. 1977).

We also agree with the trial judge that an instruction regarding testimony of accomplices would have been inappropriate since no accomplice testified in this case. The government's case against Gonzales-Palma was based principally upon the testimony of Drug Enforcement Administration (DEA) Agent Arroyo who described his undercover purchases of heroin and recounted his conversations with those assisting in the sales. Arroyo's recital of statements made to him by various coconspirators of Gonzales-Palma was not accomplice testimony under the rules of evidence; hence United States v. Owens, 460 F.2d 268 (10th Cir. 1972), relied upon by appellant, is inapposite.

80-1242

Appellant Juan Gonzales-Garcia urges that the court erred in refusing to grant his pre-trial motion for a continuance. He also argues there was insufficient evidence to support the jury verdict against him on the conspiracy count.

The decision to grant or deny a motion for continuance is committed to the sound discretion of the trial judge, and we may reverse only upon a showing of clear abuse of discretion resulting in manifest injustice. United States v. Schwanke, 598 F.2d 575 (10th Cir. 1979). Gonzales-Garcia's request for a continuance was based primarily upon the fact that he speaks very little English and that counsel representing him at trial entered his first appearance only seven days before trial. The record indicates that Gonzales-Garcia is not indigent. He first appeared before the court on November 23, 1979, and made bond. He made two subsequent appearances asking for a continuance each time on grounds he was unrepresented by counsel. On December 6, when he...