Craft v. United States

• Decision Date: 31 October 1968
• Docket Number: No. 22311.,22311.
• Citation: 403 F.2d 360
• Parties: Clifton Bert CRAFT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.2d 360 (1968)

Clifton Bert CRAFT, Appellant, v. UNITED STATES of America, Appellee.

No. 22311.

United States Court of Appeals Ninth Circuit.

October 31, 1968.

Warren P. Reese (argued), San Diego, Cal., for appellant.

Shelby Gott (argued), Asst. U. S. Atty., Edwin L. Miller, U. S. Atty., Joseph A. Milchen, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before BARNES and HAMLIN, Circuit Judges, and CROCKER,^* District Judge.

CROCKER, District Judge:

This is an appeal from a judgment convicting the appellant, Clifton Bert Craft, of the crimes charged against him in a three-count indictment. The three counts arise from the alleged clandestine introduction of approximately six pounds of marihuana into the United States from Mexico by co-defendants Larry L. Wolfe and Eleanor Rebecca Orman. Count One charged the appellant with aiding and abetting in the illegal importation of marihuana in violation of Title 21 U.S.C. Section 176a (illegal importation of marihuana) through violation of Title 18 U.S.C. Section 2 (aiding and abetting). Count Two charged the appellant with the concealment and transportation of illegally imported marihuana in violation of Title 21 U.S.C. Section 176a. Count Three charged the appellant with the illegal importation of merchandise in violation of Title 18 U. S.C. Section 545, namely 3 switchblade knives. Following a verdict of guilty on all counts, the appellant was, on June 19, 1967, given a five year sentence on each count to run concurrently.

The evidence offered by the Government in support of its charges may be summarized as follows:

On October 16, 1966, Immigration Inspector Acuna was on duty inspecting vehicular traffic entering the United States from Mexico at the Port of Entry, San Ysidro, California. At approximately 3:45 a. m., Larry Wolfe and Eleanor Orman entered the United States in a red 1961 Ford, with license number OAE-731. Acuna had a "lookout" list containing the license number OEA-731, so he referred the vehicle to the secondary area for further inspection. Customs Inspector Lasher discovered three bricks of marihuana and three switchblade knives when he inspected the 1961 Ford at the secondary inspection area.

On October 16, 1966, Customs Inspector Yates was on duty inspecting pedestrian traffic entering the United States from Mexico at San Ysidro. At approximately 3:40 a. m., he observed the appellant enter the United States. The appellant appeared nervous and Yates thought that it was "unusual" for an American to enter at that hour. Appellant, when stopped, offered the explanation that he had become separated from his friends and was returning on foot.

Four or five pedestrians later, Yates observed Horn entering the United States. He also appeared to be quite nervous. Horn offered the same explanation as the appellant for the lateness of his re-entry into the United States.

Later in the morning of October 16, Customs Agent Ellis, acting upon information given to him by Wolfe, asked appellant and Horn to accompany him to the Customs Office from a point near the Greyhound bus depot. Upon arriving at the Customs Office, Ellis advised appellant that he did not have to make any statement to him; that any statement he did make could be used against him in any court proceedings; that he was entitled to an attorney during that interrogation or any subsequent thereto; and if he could not afford an attorney, the Government would provide one for him.

After being so advised, the appellant denied knowing Larry Wolfe, the co-defendant who had been stopped at the vehicular inspection point. Subsequently, it was ascertained that the appellant and Wolfe were fellow employees. As it turns out, Wolfe, Orman, Horn and the appellant had planned to take a trip to Mexico in order to obtain amphetamine sulphate tablets for Wolfe, stag movies and a false driver's license for Orman.

All four travelled to Mexico and on the return to the United States appellant and Horn felt it would look better if the appellant and Horn crossed the border on foot in order to avoid suspicion.

Larry Wolfe testified on behalf of the Government. Wolfe and the appellant worked at the same company, and Wolfe had only known the appellant for a week. Appellant had sold Wolfe Benzedrine prior to the trip to Mexico. Wolfe had wanted the Benzedrine in order to stay awake while he was working two jobs.

Wolfe also testified that he had seen or heard that the appellant used marihuana. Wolfe further testified that he had observed the appellant remove pills from the coat he had worn to Mexico, and swallowed some himself, and gave some to Horn. This event occurred the day that Wolfe, Horn and the appellant were released from custody. Appellant stated that "the Customs officer was kind of stupid because he appellant got by him having some pills in his coat and they didn't catch him with the pills." R.T. at 69.

Wolfe further testified that appellant told him that they appellant and Horn would "get me later" if he said anything. Id. at 52. When Wolfe and the appellant were at the jail after they had been arrested, appellant told Wolfe if all the male parties testified against Orman they would "get out easier." Id. at 54.

It is appellant's first contention that the trial court erred in permitting officers Acuna and Lasher to testify over appellant's objection to the "lookout" describing the vehicle containing the contraband, for the same reason the testimony was hearsay, prejudicial to the appellant and not admissible for any purpose.

First, the Government contends that the references in the testimony of Acuna and Lasher to the fact that the vehicle in question had a license similar to, but not identical with, a license number which was on the "lookout" was not hearsay. A witness is permitted to testify to what he did and observed. The testimony concerning the "lookout" was relevant to explain why the vehicle was pulled over for further customs inspection. Both Acuna and Lasher testified to the similarity between the vehicle's license number and the "lookout," a fact which they both observed. The letters before the numerals on the "lookout" were "OEA" and the vehicle's were "OAE". This similarity was the cause for the further search of the vehicle. Therefore, the testimony was relevant and not subject to the hearsay rule.

There is also the question of whether the appellant has standing to complain of the search of the automobile since he was neither the owner of the vehicle nor present at the time of the search. The appellant's involvement was the result of Wolfe's identification of appellant to Agent Ellis. There is no direct causal relationship between the "lookout" and appellant's apprehension. Therefore, the appellant cannot complain of the derivative evidence acquired as a result of the search.

Appellant relies on only one case, that is, Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961), in support of his contention that the Customs officers' testimony regarding the "lookout" was hearsay, prejudicial and inadmissible. Sanchez is distinguishable from the case at hand, as the objectionable testimony by a witness was what other people had said. In the case at hand, there was no testimony as to the nature of the information received resulting in the placing of the vehicle on "lookout", but only the fact that there was a "lookout."

The appellant's next contention is that the damaging statements made by the appellant while in custody should not have been admitted without a showing that the appellant voluntarily, understandingly and intelligently waived his constitutional protections against self-incrimination and his right to have counsel present at the interrogation. The record is contrary. Agent Ellis orally communicated the four-point warning required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Furthermore, the appellant was given a document which read as follows:

"We are investigating marihuana smuggling. You do not have to make any statement or answer any questions.

Any statement you make could be used against you in a court of law. You have a right to remain silent. Do you understand what I have told you? You have the right to consult with an attorney before making any statement or answering any questions. You have the right to have an attorney present with you during the making of any statement or the answering of any questions. Do you want counsel, or are you willing to give up your right to remain silent and talk to us without consulting a lawyer and having one present during the making of your statement?"

Appellant said that he understood the contents of the document and signed it.

The appellant argues that the appellant was deprived of the assurance which an accused is to be given when an investigation focuses on him, in that the officer told the accused that any information elicited from him "could be" instead of "will be" used against him. The language used left no uncertainty as to the consequences of his making the statements. Therefore, the appellant was sufficiently apprised of his rights.

The pivotal question is whether the appellant voluntarily, intelligently and understandingly waived his right to counsel when being interrogated. Miranda imposes the burden on the prosecution to show a waiver. Appellant was apprised of his rights...