Encinas-Sierras v. United States

• Decision Date: 25 September 1968
• Docket Number: No. 22720.,22720.
• Citation: 401 F.2d 228
• Parties: Florentino ENCINAS-SIERRAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

401 F.2d 228 (1968)

Florentino ENCINAS-SIERRAS, Appellant, v. UNITED STATES of America, Appellee.

No. 22720.

United States Court of Appeals Ninth Circuit.

September 25, 1968.

H. Earl Rogge, Jr. (argued), Tucson, Ariz., for appellant.

Jo Ann D. Diamos (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Tucson, Ariz., for appellee.

Before MADDEN,^* Judge of the United States Court of Claims, and

HAMLEY and MERRILL, Circuit Judges.

J. WARREN MADDEN, Judge:

In this appeal no question is presented regarding the jurisdiction of the district court or this court. The appellant, hereinafter referred to as the defendant, was convicted in the district court of the crime of unlawfully importing into the United States, from Mexico, 53.9 grams of heroin, a narcotic drug, in violation of § 174 of Title 21, United States Code. The defendant has appealed to this court, asserting that errors were committed in his trial.

On November 15, 1967, the defendant, driving an International pick-up truck arrived at the Morley Avenue Gate, the smaller of the two gates at the port-of-entry from Mexico into the United States at Nogales, Arizona. United States Customs Inspector Fellars and United States Customs Port Investigator Turner saw the defendant in the truck. Turner caused the truck to stop, and took the defendant into the Customs building where he left him in Fellars' charge. Turner went out to move the truck to a location where it would not interfere with traffic, and to search it. He found nothing relevant in the truck. In the meantime, Fellars had frisked the defendant, and had had him empty his pockets. Upon Turner's return to the building, he asked the defendant if he was bringing anything into the United States from Mexico, and the defendant said he was not.

Turner then told the defendant that he was going to search his person, and, with Fellars, took the defendant into another room. Turner asked the defendant to drop his trousers, which the defendant did. Turner smelled a distinct odor which he recognized. Turner asked the defendant to drop his undershorts. The defendant snapped the elastic waistband of his undershorts a couple of times but did not drop them until Turner had repeated his direction, whereupon the defendant dropped his undershorts, and disclosed a piece of white paper in them. In the paper were two contraceptives, one of which contained nearly two ounces of pure heroin. The defendant was arrested, the heroin was seized, and was introduced in evidence at the defendant's trial.

The defendant, at his trial, testified in his own behalf. He said he had, some months before, been working as a bartender at a bar in Nogales, Mexico, where one of his customers for some three months was one Pete or Pedro Martinez; that on the day of the events recited above the defendant met Martinez, who was with another man called Johnny, or Johnny Grant, on the street in Nogales, Mexico; that Martinez asked him to carry a package for him across the line into the United States, concealed in the defendant's undershorts, for which expected service Martinez paid him $5.00 and loaned him a pick-up truck. Martinez directed the defendant to drive the truck to a specified location in Nogales, Arizona and wait there for Martinez' friends to appear and accept the package. The defendant testified that he had received the package from Martinez only some ten minutes before he was arrested, and that he did not know that the package contained heroin.

It appeared from the conferences between the court and counsel, out of the hearing of the jury, that Investigator Turner had been told by an informer, between the time that the defendant had accepted Martinez' commission to carry a package into the United States, and the time when the defendant appeared in the pick-up truck at the Customs Building, that someone would come to the Morley Avenue Gate who would, or might, be carrying contraband. The defendant's counsel requested the court to permit him, when the trial before the jury was resumed, to question Turner and learn the identity of the informer. Turner was questioned by the court, and answered that his informer was not Pete or Pedro Martinez and was not Johnny Grant, nor anyone who fitted the description of Johnny Grant. The court then sustained the Government's objection to the disclosure of the identity of its informer, holding that that information was immaterial to the issue or issues in the case.

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