Duran v. United States

• Citation: 413 F.2d 596
• Decision Date: 10 November 1969
• Docket Number: No. 22347,22347
• Parties: Daniel B. DURAN, Antonio Gonzalez Guttierez, and Jose Luis Martinez Cruz, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

413 F.2d 596 (1969)

Daniel B. DURAN, Antonio Gonzalez Guttierez, and Jose Luis Martinez Cruz, Appellants, v. UNITED STATES of America, Appellee.

Nos. 22347, 22347-A, 22347-B.

United States Court of Appeals Ninth Circuit.

June 12, 1969.

Certiorari Denied November 10, 1969.

Barry Tarlow (argued), Beverly Hills, Cal., for appellants.

Robert L. Brosio (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Anthony Michael Glassman, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and CARTER, Circuit Judges.

Certiorari Denied November 10, 1969. See 90 S.Ct. 239.

BARNES, Circuit Judge:

The three appellants herein were severally convicted by a jury on all counts charged against them. Duran was sentenced to 15 years, concurrently, on each of Counts I, II and V. Cruz and Guttierez were each sentenced to 5 years, concurrently, on Counts I and V.

Count I charged a conspiracy to illegally import, receive or conceal narcotics. (21 U.S.C. § 174.) Counts II and V were substantive counts charging Duran with receiving and concealing heroin on May 5, 1966 and May 11, 1966. Cruz and Guttierez were each convicted of the conspiracy count (Count I), and of receiving and concealing heroin on May 11, 1966 (Count V).

The substance of the conspiracy alleged was that the defendant Daniel B. Duran would arrange for Mexican nationals to smuggle heroin into the United States from Mexico. The shipments of heroin would be brought into the United States approximately once every two weeks. The Mexican nationals would register at motels in Los Angeles County. The defendant Daniel B. Duran would then arrange for the defendant Robert Vasquez and unindicted coconspirator Alfred Joseph Ales to accept delivery of the heroin, and pay for it with money supplied by Duran. The defendant Vasquez and unindicted coconspirator Ales would then deliver the heroin to the defendant Duran.

Several dates and several amounts of heroin are involved herein. One amount was allegedly delivered to Ales by Cruz and Guttierez on May 5, 1966, and a part of that was found by a janitor of the Alexandria Motel on May 6, 1966¹ in unindicted coconspirator Ales' room under his bed during his absence (Ex. 1-B). Another amount was found in a package taken from codefendants Cruz' and Guttierez' motel room at the Gales Motel by the motel manager eleven hours after the arrest on May 11, 1966² of Cruz and Guttierez and their removal from said premises by the police. (Ex. 2-B.)

Appellants urge seven grounds as error:

1. The heroin seized at the Alexandria Motel on May 6, 1966 was obtained through an illegal search and seizure, and was inadmissible.

2. Also inadmissible by reason of the illegal search and seizure of the heroin on May 6, 1966 were:

(a) the testimony of Ales before the grand jury;

(b) the baseball schedule card taken from codefendant Vasquez (Ex. 4-C), with the Gales Motel\'s name and address written thereon;

(c) the piece of cardboard taken from codefendant Cruz on May 11, 1966 (Ex. 8), with the Gales Motel address written thereon;

(d) the heroin found in Cruz\' and Guttierez\' vacated room on May 12, 1966. (Ex. 2-B.)

3. The heroin found in Cruz' and Guttierez' room on May 12, 1966 was inadmissible because:

(a) the entry to Cruz\' and Guttierez\' room on May 12, 1966 was unlawful under California law;

(b) the arrest and search of Cruz and Guttierez was unlawful because there was no warrant and no probable cause for the arrest.

4. The evidence was insufficient as a matter of law to find possession of narcotics as to Count V on May 11 or May 12, 1966.

5. The conviction on Count I (the conspiracy) must be reversed because of:

(a) errors in instructions;

(b) insufficiency of the evidence.

6. Effective assistance of counsel was denied appellants because one counsel represented all defendants.

7. Remarks made by the trial judge denied appellants a fair trial.

8. The errors made by the trial court as to any one count affect all counts.

Counsel for appellants urges that if points 6, 7 or 8 have merit, then all counts must be reversed. We agree that if any such error existed, as is charged in points 6, 7 and 8, a reversal would be required. But a careful reading of the transcript convinces us no error in these three respects exists. By reason of such over-all reliance by appellants, it would seem proper to consider such alleged errors first.

I. Representation by Counsel

The trial judge on more than one occasion queried the retained trial counsel, David C. Marcus, Esq., if there was "the slightest hint of conflict" of interest between the several defendants. (R.T. 4, Vol. A.) Before the jury was selected, the trial judge again inquired if any conflict existed in Mr. Marcus then representing the three defendants going to trial (Duran, Cruz and Guttierez).³ The trial judge was assured by Mr. Marcus there was no conflict. (R.T. 14.)

"When counsel represents to the Court that there is no conflict of interest `the trial court must be able, and be freely permitted, to rely upon counsel\'s representation that the possibility of such conflict does or does not exist.\' Kaplan v. United States, 375 F.2d 895 (C.A. 9 1967). In view of the assurances of counsel and the appellant, the Court\'s determination that there was no conflict of interest was in accord with the law and the facts." Clark v. United States, 412 F. 2d 491 (9th Cir., decided May 19, 1969).

We have read the entire 480 pages of testimony in the transcript, and find no obvious or patent conflict of interest as between these three defendants. Counsel on appeal suggests that perhaps the "best defense" would have been to have Duran blame Cruz and Guttierez; that "there was no specific evidence to connect Duran with his codefendants except the facts that both codefendants apparently knew Vasquez and that Duran had been seen at an address found on Guttierez' automobile registration." What is meant by the reference to "specific evidence" is uncertain. There was in the record positive testimony of Ales, which seems to be specific enough, and not circumstantial evidence. This evidence we are now asked to overlook.

It is next suggested that Guttierez could blame Cruz, Vasquez and Duran; that he could assert that Cruz alone had brought the heroin to their room; and Guttierez could charge Cruz, Vasquez and Duran with the narcotic conspiracy.

Finally, it is represented that the evidence against Cruz was weak (Brief, p. 74), and that the defense actually raised on behalf of all three defendants is "preposterous" (i.e., that Ales could not be believed and that each defendant was innocent).

Appellants now criticize the defense "adopted" from hindsight. If any defense was to be "adopted," it might well have been that "the best defense" for the original four defendants "to adopt" was to keep them all under the shepherd's crook of one attorney. Their attorney, David C. Marcus, Esq., is a well known and busy criminal defense attorney in Los Angeles, with at least twenty-five years' experience. By no means could his defense of these defendants have been described as a farce, or a sham. That he used an unsuccessful defense does not prove that it was not the best, nor that it was inadequate. "Because one counsel suggests after the fact, that he thinks the case should or could have been defended in a different manner, does not make the trial `a farce and a mockery of justice'." United States v. Callison, 408 F.2d 1362 (9th Cir., 1969). Nor does it prove counsel could not properly represent all defendants, nor that the trial was a farce or a sham. We find no merit in appellants' sixth alleged error.

II. Remarks of the Trial Judge

The very tenacity displayed by counsel for defendants below (which resulted in exasperating the trial judge) belies trial counsel's alleged incompetence and/or lack of diligence. While the trial judge was clearly short of patience at times with trial counsel, no error is charged in any of the rulings he made (save as to instructions, which we will hereinafter discuss). Further, he was critical at times of the prosecution as well as the defense. He repeatedly advised the jury not to be governed or influenced by his remarks.

Appellants urge us to remember what was said and done by this court when passing on the conduct of the same trial judge in an unrelated case. (Carroll v. United States, 326 F.2d 72 (9th Cir. 1963).) The writer of this opinion is thoroughly familiar with the facts and opinion in Carroll, having sat on the panel deciding it. Both cases have some things in common. See id. at 82-85, parts numbered 4, 5 and 6. We disagree with appellants' counsel's conclusion, however, that "The conduct of the trial court in this case went further than it did in Carroll, and it thereby passed the bounds determined permissible by this Circuit." It did neither. Appellants themselves agree that "while any one of these comments, taken alone, could be harmless" (Brief, p. 85), in the aggregate they constitute error. "No error" plus "no error" does not, in our opinion, create "error."

We are convinced there is no merit in appellants' claim that prejudice was shown by the trial judge or that appellants were unfairly tried.

III. Cumulative Errors

Nor can we find merit in point 8. There is no error in joinder of charges of similar types of crimes or acts constituting part of a common plan or scheme. In fact, it is specifically authorized, if not suggested, by the Federal Rules of Court. Fed.R.Crim.P. 8(a).

As to double jeopardy, "successive federal prosecutions of the same person based on the same acts are prohibited by the Fifth Amendment. * * * It was held in Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 363, 98 L.Ed. 435, that `A defendant may be convicted of two offenses even though the charges arise from a single act or series of acts, so long as each requires the proof of a fact not essential to the other.'" In re Herndon, 394 U.S. 399 89 S.Ct....