Enriquez v. United States

• Citation: 293 F.2d 788
• Decision Date: 15 August 1961
• Docket Number: No. 17276.,17276.
• Parties: Jesus Padilla ENRIQUEZ, Raul Franco, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

293 F.2d 788 (1961)

Jesus Padilla ENRIQUEZ, Raul Franco, Appellants, v. UNITED STATES of America, Appellee.

No. 17276.

United States Court of Appeals Ninth Circuit.

August 15, 1961.

David C. Marcus, Los Angeles, Cal., for appellants.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, Edward M. Medvene and Ernest A. Long, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG and KOELSCH, Circuit Judges.

BARNES, Circuit Judge.

Appellants were indicted in three counts (III, IV and VII) of a seven count indictment. Count III charged each with sale and Count IV the concealment of certain narcotics, each in violation of 21 U.S.C.A. § 174 and each occurring on August 2, 1960. Count VII charged each defendant and others with a conspiracy to sell and conceal the same narcotics in violation of 21 U.S.C.A. § 174. The central figure in all seven counts was one Rosalio Hernandez Trigueros, Jr. In the conspiracy count it alleged the object thereof was that Trigueros would arrange to transfer heroin to prospective purchasers, and that the five remaining defendants would supply Trigueros with the needed heroin. The sole overt acts charged against defendants were:

(a) that on August 2, 1960, Enriquez drove coappellant Franco to a meeting where Franco met with codefendant Diaz;

(b) that on August 2, 1960, Enriquez and Franco met with defendant Trigueros in a certain alley.

Prior to trial, defendants Ferrell and Trigueros pleaded guilty to Count I, and defendant Diaz pleaded guilty to Count VII. All defendants went to trial on the remaining counts. Defendant Rose Montez was acquitted; appellants and the other defendants were convicted on all counts.

Jurisdiction below rests on 21 U.S.C.A. § 174; and here on 28 U.S.C. § 1291.

Victor Maria, an undercover agent for the Federal Bureau of Narcotics, purchased narcotics from defendant Trigueros on July 20, 1960. Neither appellant was involved in that sale. We now adopt the government's factual statement of subsequent events; and we assume it represents the view most favorable to the government, which on this appeal we are required to accept as true.

"At approximately 3:35 P.M. on August 2, 1960 Agent Maria met defendant Trigueros at the intersection of Date and Maple, Montebello, California. Trigueros entered the government vehicle and in the ensuing conversation Agent Maria asked Trigueros if he was ready to deliver some heroin. Trigueros replied that he had made arrangements to get some heroin but that the source of supply would be unavailable until 4:30.

"At 4:30 P.M. on August 2, 1960, defendant Diaz joined Trigueros and Agent Maria in the government vehicle. Diaz directed Agent Maria to drive to the Samoan Bar. During the drive to the Samoan Bar, Diaz in discussing the purchase of heroin identified `Sleepy\' as the man they were going to see.

"Upon arrival at the Samoan Bar, Trigueros and Diaz alighted from the government vehicle and walked to the Samoan Bar; shortly thereafter said individuals returned and re-entered the government vehicle.

"Upon re-entering the government vehicle, Diaz stated that `he wasn\'t there,\' and directed Agent Maria to proceed west on Whittier Boulevard. Diaz further stated that they were to meet `Sleepy\' and mentioned that `Sleepy\' was a cabinet maker who was remodeling a store on Whittier Boulevard. Agent Maria, following Diaz\' directions, proceeded to the rear of 4780 Whittier Boulevard, where Trigueros and Diaz left the government vehicle and entered the rear door at said address.

"Approximately thirty minutes later, Trigueros returned to the government vehicle and asked Agent Maria if he knew how to `cut\' heroin. Agent Maria replied affirmatively, and Trigueros stated that if he, Maria, did not cut the heroin, `they\' would and Agent Maria would get `burnt.\' Trigueros then said, `Wait a minute. We get it ready.\' Trigueros was then observed to return to the premises at 4780 Whittier Boulevard.

"At this time, Agent Licuanan left his point of surveillance and walked past the front of the premises at 4780 Whittier Boulevard. As Agent Licuanan passed the store he observed defendants Diaz, Trigueros, Enriquez (Sleepy Padilla) and Franco as well as Augustine Ramirez engaged in conversation in the shop.

"Thirty minutes later Trigueros and Diaz again returned to and entered the government vehicle and directed Agent Maria to the corner of Eastman and Whittier, Montebello, California, where Agent Maria was instructed by Diaz to park the government vehicle. Shortly thereafter, a 1958 Chevrolet Impala drove up and parked near the government vehicle. Agent Maria observed an unidentified male leave the Chevrolet Impala, approach the government vehicle and instructed Diaz and Trigueros that `the stuff is ready. Get the money and follow me.\' The Impala, with the unidentified male following on foot, proceeded to an adjacent alley.

"Agent Maria gave Trigueros $600, Trigueros left the government vehicle and disappeared into the adjacent alley; Diaz remained with Agent Maria. In the ensuing minutes Agent Maria observed the previously identified black Impala drive past the location of the government vehicle on three occasions. Trigueros was observed to be a passenger in the Impala on these occasions. Trigueros then returned to the government vehicle and handed Agent Maria a rubber contraceptive containing a brown powder, Government\'s Exhibit 2-C."

An unsuccessful attempt to purchase heroin from Trigueros on August 17, 1960, followed. A successful attempt to purchase heroin from Trigueros on August 26, 1960, followed. In neither one of these contacts was either appellant involved.

The evidence hereinabove cited discloses no involvement of either appellant, other than the statement of codefendant Diaz that "Sleepy," (Padilla) was the source of supply, and that on August 2 1960, certain other defendants were in the presence of and had a conversation with appellants. Neither bit of evidence would, we think, be sufficient without more, to sustain the conviction of either defendant.

The government thus must rely primarily on the testimony of one Augustine Ramirez, sixteen years of age and "a third cousin" of the appellant Franco, who worked with defendants doing cabinet work at 4780 Whittier Boulevard on August 2nd, 1960, working out of a cabinet shop located at 4010 Whittier Boulevard in the County of Los Angeles, California. That testimony is as follows, as set forth by the government:

"Sometime between mid-April and July of 1960, appellant Franco and Ramirez had a conversation in Franco\'s cabinet shop located at 4010 Whittier Boulevard, in which Franco told Ramirez that he would make a `connection\' for `Jess\' (Enriquez) and after that he would not handle the `stuff\' as it was too dangerous. (The word `stuff\' as understood and used by Ramirez referred to heroin.)

"Early in July, 1960, in Franco\'s cabinet shop, 4010 Whittier Boulevard, Ramirez had a conversation with appellant Enriquez in appellant Franco\'s presence. Enriquez told Ramirez that if any heroin came in, to put it some place in the shop. On more than one occasion, deliveries of heroin were made to the cabinet shop and Ramirez on each occasion hid the heroin in the shop. Subsequently, Franco and/or Enriquez would inquire as to whether the heroin had been delivered and following Ramirez\' `Yes\' answer, Enriquez would go to and pick up the heroin.

"During July and August 1960, Ramirez worked with appellants Franco and Enriquez at 4780 Whittier Boulevard making fixtures for a clothing store not yet open to the public. On occasion, during working hours, Ramirez observed persons enter the premises, speak to Franco or Enriquez and then enter the restroom with Franco or Enriquez. After a brief stay in the restroom Enriquez or Franco would emerge from the restroom and be observed in the process of putting money in their pockets. At times, after Enriquez visited the restroom, Ramirez observed Enriquez deliver money to Franco.

"On August 2, 1960, Ramirez was working at 4780 Whittier Boulevard with appellants Franco and Enriquez. During the day, Ramirez observed Arnold Diaz and Ross Trigueros enter the store and converse with Franco and Enriquez for a while. After Trigueros and Diaz left the store, Franco instructed Ramirez to accompany Enriquez to Franco\'s cabinet shop at 4010 Whittier Boulevard, adjacent to Eastman and Whittier. Enriquez and Ramirez proceeded to the cabinet shop in Franco\'s black 1958 Impala Chevrolet. Near the cabinet shop, on Eastman, Enriquez halted the black Chevrolet Impala and instructed Ramirez to leave the vehicle and tell Trigueros or Diaz that `the stuff would be ready.\' Ramirez told Trigueros that the heroin was ready and walked to the cabinet shop. Enriquez instructed Ramirez to lock up the cabinet shop. Enriquez and Trigueros who had by that time arrived at the shop, departed in Franco\'s black 1958 Chevrolet Impala. Later, Franco and Enriquez returned to the cabinet shop, picked up Ramirez and took him home.

"Subsequent to action of August 2, 1960, appellants Franco and Ramirez had an argument concerning payment of approximately $135 by Franco to Ramirez. Ramirez stopped working for Franco as a result of the nonpayment of wages. Sometime thereafter, Ramirez again approached Franco requesting payment and was rebuffed.

"Following Franco\'s refusal, Ramirez said, `Don\'t be surprised if anything happens\', and Franco replied, `If anything happens, I am going to kill you.\'

"The cross-examination elicited the fact that Ramirez was photographed and fingerprinted by Agent Maria on the date he was initially contacted. (Agent Maria testified this was done because it was apparent that Ramirez knew people in the narcotic traffic and this information would facilitate the relocation of Ramirez if needed); that Ramirez did not know he was to testify until the day before the commencement of the

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