Cazares-Ramirez v. United States

• Decision Date: 20 March 1969
• Docket Number: No. 25010.,25010.
• Citation: 406 F.2d 228
• Parties: Jose CAZARES-RAMIREZ and Jose Felix Nandin, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 228 (1969)

Jose CAZARES-RAMIREZ and Jose Felix Nandin, Appellants, v. UNITED STATES of America, Appellee.

No. 25010.

United States Court of Appeals Fifth Circuit.

January 7, 1969.

Rehearing Denied February 28, 1969.

Rehearing Denied March 20, 1969.

Jeremiah Ingels Rhodes, John W. Claybrook, Eagle Pass, Tex., for appellants.

Reese Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before THORNBERRY and SIMPSON, Circuit Judges, and ATKINS, District Judge.

SIMPSON, Circuit Judge:

Jose Cazares-Ramirez and Jose Felix Nandin, were jointly indicted,¹ tried and convicted before a jury for violation of Title 21 U.S.C. Section 174.² Counts Two and Three of the indictment charging the plaintiffs jointly with selling heroin in violation of Title 26 U.S.C. Section 4705(a), and Title 26 U.S.C. Section 4704(a), respectively, were abandoned and dismissed. From judgments imposing confinement sentences of ten years upon each defendant, these appeals were taken.

We affirm the conviction as to Cazares-Ramirez. As to Nandin, the other two members of this panel affirm in a separate opinion prepared by Judge Thornberry. The writer of this opinion views the evidence as insufficient to support Nandin's conviction and would reverse and render.

Viewed in the light most favorable to the government³ the evidence showed that on the afternoon of November 1, 1966, Customs Agent Sam Schwartz, acting in an undercover capacity and posing as a Dallas dope peddler, met with the appellants in the parking lot directly behind the Merchant's Cafe on Main Street in Eagle Pass, Texas. Schwartz was introduced to the appellants by an informant, who sat in the automobile in the parking lot during this initial interview but was not further involved in the case. Cazares-Ramirez told Schwartz that he had 30 ounces of white heroin which he wished to sell for $450.00 an ounce and that he would accept $13,500.00 for the entire 30 ounces. Cazares-Ramirez told Schwartz that the heroin would be good heroin, fifty percent pure or better. Nandin took almost no part in the conversation, but at this point he told Schwartz that the white heroin would be good quality and that the weight would be correct. Cazares-Ramirez told Schwartz that if he preferred brown heroin he had approximately one and one-half kilos he would sell for $350.00 per ounce. Schwartz stated that he preferred to buy the white heroin and a price of $13,000.00 for the 30 ounces was agreed upon. Schwartz insisted that delivery be made in the United States, to which Cazares-Ramirez agreed. Schwartz stated that he was tired and asked where he could obtain a room. One of the appellants suggested the Holly Inn Motel, Eagle Pass, Texas, and the other agreed that this was a good place. Schwartz asked when delivery would be made and Cazares-Ramirez replied that he would bring the heroin to Schwartz's room the following afternoon. Schwartz stated that he preferred that delivery be made before noon to save him from having to pay for another day at the motel, and this was agreed to by Cazares-Ramirez, who then asked Schwartz if he wanted the heroin in one large package or if he preferred to have it in smaller packages. Schwartz indicated that he preferred that it be contained in smaller packages. The two appellants left. This meeting had lasted about fifteen minutes. The following day, November 2, 1966, at approximately 11:35 A.M. Cazares-Ramirez arrived alone at the Holly Inn Motel and entered Schwartz's room. Schwartz asked if he had brought the heroin and was told that he did not have it with him but that it would only take about five minutes to get it. Schwartz advised Cazares-Ramirez that he would pay for the heroin after he had checked it to be sure that it was genuine. Cazares-Ramirez departed. He returned about 12:35 P.M. the same day accompanied by Nandin, and parked his car in front of Schwartz's room. Both appellants entered the room and Cazares-Ramirez placed a package that he was carrying on the table. He opened the package and Schwartz observed two plastic bags each of which contained five smaller packages. Cazares-Ramirez picked up one of the packages and said that he had wrapped them so they would be easy to unwrap and he pulled the end of the package and opened it. Schwartz examined the heroin and advised the appellants that he would go out to his car and get the money with which to pay for it. About one minute after he returned to the motel room with the money, customs officials entered the room, seized the heroin and placed the appellants under arrest. A subsequent search of Cazares-Ramirez's automobile revealed several packages of brown heroin and white heroin and a set of scales in a cardboard box. On the way to jail with a customs agent, Cazares-Ramirez admitted importing the heroin into the United States earlier that day and said "this is what I get for fooling around with heroin trying to make some money and not working." These statements were made after full warnings as to Fifth and Sixth Amendment rights.

THE APPEAL OF JOSE CAZARES-RAMIREZ

The questions raised by this appellant on appeal, stated by him as four separate points, resolve themselves into two questions: (1) whether or not the evidence shows unlawful entrapment, and (2) by reason thereof whether or not the district court erred in denying motion for judgment of acquittal.

In Jasso v. United States, 5 Cir. 1961, 290 F.2d 671, this Court had occasion to cite with approval the guidelines laid down by United States v. Sherman, 2 Cir. 1952, 200 F.2d 880, (per Learned Hand, J.) for determining the propriety of inducements to commit crime. The holding was that such inducements by government agents were proper where (1) there was an existing course of similar criminal conduct, (2) the accused had already formed a design to commit the crime, or (3) his willingness to do so was evidenced by ready compliance. Here it appears that this appelland readily offered to supply large quantity of heroin as soon as agent Schwartz was introduced as a dope peddler by the informant. He was patently ready and willing to violate the law upon being given the opportunity to do so by the offer of the government agent to purchase the heroin. In further proof that the criminal design or purpose existed in his mind at the time that he was given the opportunity to violate the law it was established that he could furnish either white or brown heroin and that he would sell one and one-half kilos of brown heroin at $350.00 per ounce. The search of his car after his arrest uncovered an additional fourteen ounces of heroin and a set of balance scales suitable for weighing narcotics in gram weights. See Reece v. United States, 5 Cir. 1942, 131 F.2d 186; Walker v. United States, 5 Cir. 1962, 301 F.2d 94, and Washington v. United States, 5 Cir. 1960, 275 F.2d 687.

Cazares-Ramirez asserts that the court below erred in overruling his motion for judgment of acquittal. Except when the facts are undisputed and cannot admit of any other conclusion, entrapment is a question to be resolved by the jury. See Sorrells v. United States (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States (1958) 356 U.S. 369, 78 S.Ct. 819, 2 L. Ed.2d 848; Lopez v. United States (1963) 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; Accardi v. United States, 5 Cir. 1958, 257 F.2d 168, cert. denied 358 U.S. 883, 79 S.Ct. 124, 3 L.Ed.2d 112; Coronado v. United States, 5 Cir. 1959, 266 F.2d 719; and Suarez v. United States, 5 Cir. 1962, 309 F.2d 709, 710. There was sufficient evidence to establish that Cazares-Ramirez was not entrapped, and there was sufficient evidence to support the jury's verdict of guilty. As to this appeal, the judgment of the district court is affirmed.

THE APPEAL OF JOSE FELIX NANDIN

As to this appeal the members of this panel are in disagreement. The author of this opinion would reverse for the reasons set forth hereinafter. Judges Thornberry and Atkins, a majority of the panel, affirm the conviction of Nandin for reasons set forth in Judge Thornberry's separate opinion. The remainder of this opinion then is my dissent from this majority holding.

The theory of the government's case as to this defendant was predicated on the presumption provided in the closing paragraph of Title 21 U.S.C. Section 174, as follows:

"Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

The effect of the presumption is such that a jury is justified in presuming that heroin has been illegally imported into the United States and that the defendant knew of its illegal importation when it is established beyond a reasonable doubt that the defendant has possession of the narcotic drug. It is clear that constructive possession is sufficient. See United States v. Malfi, 3 Cir. 1959, 264 F.2d 147; United States v. Santore, 2 Cir. 1959, 290 F.2d 51; Cellino v. United States, 9 Cir. 1960, 276 F.2d 941; Green v. United States, 9 Cir. 1960, 282 F.2d 388; United States v. Hernandez, 2 Cir. 1960, 290 F.2d 86; United States v. Mills, 3 Cir. 1961, 293 F.2d 609; United States v. Jones, 2 Cir. 1962, 308 F.2d 26; Lucero v. United States, 8 Cir. 1963, 311 F.2d 457; Mack v. United States, 8 Cir. 1964, 326 F.2d 481; Brothers v. United States, 9 Cir. 1964, 328 F.2d 151; United States v. Ramsey, 2 Cir. 1966, 374 F.2d 192; Amaya v. United States, 10 Cir. 1967, 373 F.2d 197; Moody v. United States, 9 Cir 1967, 376 F.2d 525.

The co-defendant's admission of illegal importation of the heroin was stricken by the trial court as hearsay evidence as far as Nandin was concerned and there was no other evidence that Nandin knew that the heroin was illegally imported. The question is whether the evidence was sufficient to support the...