U.S. v. Escobar, 81-4059

Citation674 F.2d 469
Decision Date30 April 1982
Docket NumberNo. 81-4059,81-4059
Parties10 Fed. R. Evid. Serv. 449 UNITED STATES of America, Plaintiff-Appellee, v. Jorge E. ESCOBAR, David Earl Ervin, Sr., Michael Richard Layman, Eladio Jorge Alonso, Tomas Alfredo Lastre, Danilo J. Perez, Luis Ferro-Perez, John Walter Sparrow, Armando Ernesto Herrera a/k/a Armando Pedro Alanis, Jose Edward Alanis, Rolando Ortiz-Costumero and Hector Ricardo Manso, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

James K. Dukes, Hattiesburg, Miss., Harold F. Keefe, Coral Gables, Fla., Ronald A. Dion, No. Miami Beach, Fla., for defendants-appellants.

Jerry A. Davis, Asst. U.S. Atty., Biloxi, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, THORNBERRY and GARZA, Circuit Judges.

GARZA, Circuit Judge:

In a four-count indictment, appellants were charged with conspiracy to import marihuana into the United States, 1 conspiracy to possess marihuana with the intent to distribute, 2 importation of marihuana 3 and possession of marihuana with the intent to distribute. 4 After pleading not guilty, the case went to trial; with the exception of Manso, appellants were found guilty on all four counts. Manso was found guilty on all counts except possession. On this appeal, appellants contend that the trial court committed reversible error on several occasions. Because we find some of these allegations meritorious, the decision below is affirmed in part and reversed in part.

Facts

As a result of increased drug smuggling activity in the Slidell area, the Louisiana State Police implemented a smuggling profile based on past experience that focused surveillance on out-of-state, four-wheel drive vehicles equipped with radio and driven by Latins. Using that profile, one Louisiana officer observed two vehicles which he felt warranted further investigation: a red and silver six-wheel vehicle and a black GMC pickup pulling a boat and trailer with Florida registration. Both were being driven by Latin-looking males. A quick check on the vehicles' registration revealed that they were registered to appellant Hector Manso. Manso's name was then run through the police computer where it was further revealed that he had a prior record and was a suspected narcotics smuggler. When this was established, the officer followed the two vehicles to a farm located in Clifton, Louisiana. There, he noticed a green six-wheel Sears truck with another boat. At this point, a constant surveillance was established.

Throughout that day a large amount of activity was observed at the farm house with numerous people coming and going. A traffic stop disclosed that appellant Danilo Perez and Cameron Sprowls, an indicted co-defendant who remains a fugitive, were driving one of the observed vehicles.

On August 6, 1981, Manso and Sprowls transported one of the boats-a 23-foot white pleasure craft-from the farm in Clifton to the Gulf View Motel in Long Beach, Mississippi, where they registered in Sprowls' name. The surveillance intensified as agents of the Drug Enforcement Administration, Mississippi Bureau of Narcotics, and U. S. Customs officers were called upon for assistance. This surveillance revealed numerous trips between the farm in Clifton, Louisiana, and the motel involving the black GMC truck and a 1977 Chevrolet pickup. In addition, the 23-foot white boat, two green john boats 5 and the six-wheel Sears truck were brought to a site along the Wolf River in Mississippi. Appellants Manso, Perez, Alonso and Armando Alanis were observed in association with the vehicles and boats, as well as with each other at the Gulf View Motel.

During this time, surveillance was not limited to the ground. On August 10th, a U. S. Customs plane also observed Manso's black pickup carting around a green john boat with a large Mercury outboard motor on it. Losing sight of it after it went into a wooded area along the northern bank of the Wolf River, the Customs agents made the decision to proceed south into the Gulf of Mexico for a routine surveillance of an area in which smuggling activities had been observed in the past. There, the SAINT ANNE, a shrimp boat, was observed. Attention was drawn to the vessel because it was proceeding in a direction opposite that traveled by boats involved in shrimping activities during that time of day. Continued air surveillance of the SAINT ANNE throughout the night revealed that it had rendezvoused with several small boats. Although darkness prevented positive identification of the smaller boats from the air, a U. S. Customs ship later observed a white boat and green john boat similar to the ones transported into Mississippi from Louisiana in the area in question.

Shortly thereafter, around 6:30 a. m., a Mississippi Bureau of Narcotics agent stationed at the Bay of St. Louis Bridge spotted a large green john boat containing five individuals and numerous bales of material suspected to be marihuana. Appellant Ortiz was identified as being on the boat by the brown pullover terry cloth shirt he was wearing. Approximately ten minutes later, the same boat was seen further north by a DEA agent stationed at a bridge on Menge Road over the Wolf River. This agent was also able to identify appellant Ortiz by his distinctive clothing.

After this last observation, DEA and Mississippi Bureau of Narcotics agents proceeded to converge on the suspected landing site previously located on the Wolf River. Upon arrival, the agents observed the black GMC truck, the 1977 red and silver Chevrolet truck, the green Sears truck and two boat trailers. Several individuals fled the area and eighty-six bales of marihuana were discovered in the rear of the Sears truck. Arrested at the loading site were appellants Luis Ferro-Perez, Jimmy Velez-Cuenca 6 and John Sparrow, as well as three juvenile Colombian women. 7

At approximately the same time, Customs officers seized the white pleasure craft in the Bay of St. Louis; approximately twenty bales of marihuana were aboard, and appellants Perez and Armando Alanis were arrested. Also seized in an area near the mouth of the Wolf River was a green john boat similar to the one reported leaving the area of the SAINT ANNE earlier that day. While this boat was barren of bales, gleanings of marihuana were found on its bottom; appellants Lastre and Jose Alanis were arrested. Finally, U. S. Customs agents boarded the SAINT ANNE as it docked in Gulfport. Marihuana residue was discovered on board, and the agents arrested appellants Ervin, Layman, Escobar and Alonso. 8 Further examination revealed a chart which indicated that the vessel arrived from outside the United States, and a radio identical to the one found in Manso's black GMC truck.

Ortiz was arrested later that day in the Menge Road area; he was scratched, wet and dressed in the same brown pullover earlier identified by the agents stationed at the two bridges. A subsequent search of the white boat revealed a business card bearing Ortiz's name. When the Gulf View Motel rooms were later searched pursuant to a warrant, invoices were discovered which evidenced the recent purchase of two john boats. Also discovered was a Louisiana boat registration in the name of Jose Perez with a number identical to that found on the green john boat previously seized. Registration forms for the vehicles seized at the landing site were also found.

The Computer Records

During direct examination of Tom Fisher, the Louisiana officer who initiated surveillance, the government sought to elicit those observations which focused the officer's attention on Manso. In responding to the government's question, the officer, perhaps overzealously, exceeded the scope of the question and began narrating how he ran Manso's name through different computers. The following colloquy then took place:

MR. KEEFE (defense counsel):

Excuse me. Objection, Your Honor, to what the results of any computers or anything else as hearsay.

THE COURT:

I'll overrule your objection.

MR. DAVIS (the prosecutor), Continuing:

Q. Go ahead.

A. I checked into the computer the name Hector Manso to see if it was a known subject, to determine if the subject had any prior record of dealing with narcotics.

MR. KEEFE:

Objection, Your Honor, to anything that he learned from a computer as total hearsay.

THE COURT:

Overruled.

A. Through the computer and through teletypes I received back I learned that the subject Hector Manso did have a prior record and was entered in the computer as being a suspected narcotics smuggler and had a boat owned by him seized in May of 1980 with marihuana gleanings.

MR. KEEFE:

Your Honor, I would object to that as hearsay and move for a mistrial.

THE COURT:

I'll overrule your objection.

Two problems with the admission of this testimony immediately present themselves: hearsay and improper use of prior offenses. Since the officer was allowed to testify as to what he learned from the computer, his statements were beyond doubt, inadmissible under the hearsay rule. See United States v. Davis, 568 F.2d 514 (5th Cir. 1978); United States v. Black, 436 F.2d 838 (5th Cir. 1971); and United States v. Johnson, 413 F.2d 1396 (5th Cir. 1969). At the heart of the hearsay rule is the policy against depriving a party of his right to cross-examine a witness. No clearer case than the present one exists which epitomizes a deprivation of that right. The computer records indicated that Manso was "a suspected narcotics smuggler." The word "suspected" leaves too large a gap for defense counsel to fill when the witness is unable to testify as to the accuracy and thoroughness of the procedures used to arrive at that label. Such a burden should never be required.

The officer was also improperly permitted to refer to Manso's prior record. Extrinsic offense evidence is never admissible to show that a defendant had a bad character or propensity to commit the crime in issue,...

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