Enriquez v. United States, 17928.

• Decision Date: 04 March 1963
• Docket Number: No. 17928.,17928.
• Citation: 314 F.2d 703
• Parties: Jesus Padilla ENRIQUEZ and Raul Franco, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.2d 703 (1963)

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

No. 17928.

United States Court of Appeals Ninth Circuit.

March 4, 1963.

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

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Crim. Section, and Russell R. Hermann, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and FOLEY, District Judge.^*

BARNES, Circuit Judge.

This is the second appeal before us in the above entitled matter.

Originally there were seven defendants charged in a seven count indictment. Defendants Enriquez and Franco were charged in Count III with sale and in Count IV with the concealment and transportation, or facilitating the concealment or transportation, of narcotics; and in Count VII were charged with other defendants of a conspiracy to sell and conceal the same narcotics. (21 U.S.C. § 174.) As we noted in our previous opinion (9 Cir., 293 F.2d 788), the central figure, one Trigueros, was charged in all seven counts. Prior to the first trial, Trigueros pleaded guilty to Count I along with defendant Farrell. Defendant Diaz pleaded guilty to the conspiracy count. Defendant Rose Montez was acquitted. Jurisdiction of the district court rested upon 21 U.S.C. § 174, and rests here upon 28 U.S.C. § 1291.

On this trial, the trial judge dismissed the conspiracy count at the conclusion of the government's case, and the jury found each appealing defendant innocent of selling, but guilty of the facilitating count (IV), on August 2, 1960.

In our previous opinion we quoted the evidence at some length in order to show that proof the defendants now appealing participated in any manner in one of the three alleged sales of narcotics rested almost entirely upon the testimony of the witness Ramirez, a sixteen-year-old boy. Other than the facts:

(1) that Franco was the owner of one of the cars seen at the site of the sale of narcotics on August 2, 1960;

(2) that the defendants Diaz and Trigueros had a conversation in the presence of the narcotics agent, Maria, and the special employee, Barnes, in which two words were heard and recognized ("connection" and "sleepy",¹ the latter being Enriquez\' nickname);

(3) that Trigueros, Diaz, Franco and Enriquez had been seen in certain conversations, contents unreported, at the remodeled store premises at 4780 Whittier Boulevard in Los Angeles, California, prior to one of the sales;

(4) that Enriquez had been identified as the driver of one of the cars which participated in the transaction of August 2, 1960.

there was no evidence corroborating Ramirez' testimony and bringing the two appealing defendants into the case. There was no testimony that on August 2, 1960, there were any narcotics on the premises of defendant Franco's cabinet shop at 4010 Whittier Boulevard, or on the premises where he was working, 4780 Whittier Boulevard, or that any money passed at either place. There is testimony that Enriquez drove a car to which money was delivered (to another person), and that from said car another person threw narcotics. Thus while there was no proof of actual possession, direct or inferential, there was a question whether or not the appealing defendant Enriquez did have constructive possession through the exercise of some dominion over the narcotics in the physical possession of some unknown person in Franco's car, driven by Enriquez on the night of August 2, 1960.

In our previous opinion we summarized the evidence, as had been done in the government's brief in a manner which we assume was the most favorable to it when it sought to support the judgment of conviction. We stated there was sufficient evidence to convict, but reversed the judgment obtained at the first trial upon the ground of procedural error in the introduction of evidence.

Coming to the appeal that is now before us, we feel we are required, because of our ultimate conclusions, to note that the following matters took place at this trial which make it factually different from the first trial:

(A) At the start of the trial the government stated it would not offer any evidence as to overt acts three and five, contained in Count VII, the conspiracy count. These were the only overt acts charged against the defendant Franco or Enriquez, or either of them. The court thereupon declined to read the overt acts three and five to the jury, and instructed the jury: "They overt acts three and five are withdrawn. The jury will understand that they are not to be considered and that they are not before you." (Tr. 93.)

Despite the fact that no overt acts were charged against the defendants, or either of them, the government did not dismiss the conspiracy charge, but proceeded to trial on it.

After the trial judge announced that he would take the conspiracy count away from the jury and ask the jury to consider substantive Counts III and IV only, and permitting them to determine if there was a common scheme or plan between these two defendants, and others, counsel for the government immediately stated: "I have no objection, your Honor." (Tr. 496.)

The date of the alleged conspiracy was from July 20th to August 29th, 1960. The government proceeded to have its witnesses relate conversations between Maria and Trigueros and others out of the presence of the appealing defendants. Timely, well founded and continuing objections were made on the ground a conspiracy had not been established, and that the conversations were then hearsay as to the two objecting defendants. The questions were permitted to be answered, subject to a later motion to strike. Similar conversations were offered, objected to, and permitted in evidence with respect to incidents occurring on July 27th and August 1st, 1960, as well as a conversation on August 2, 1960, prior to the time of day that the officers allegedly met the defendants Enriquez and Franco, and conversations taking place on August 17, 1960 and August 26, 1960, all outside the appellants' presence. Thus, six conversations relating to the narcotics trade were gone into before the jury, over timely objection and with the continued admonition of the trial judge that he would strike such testimony from the record should the conspiracy not be proved, or any agency or common scheme developed. The trial judge's rulings, of course, were perfectly proper, as we pointed out in our previous opinion, due to the large discretion permitted the trial court in permitting proof of an alleged conspiracy, and the order of proof of its necessary parts.

At the conclusion of the plaintiff's case, the proof of the conspiracy had not been developed by the government; the defendants now appealing were not proved to have been part of any conspiracy, and the trial judge (and again very properly) granted the appealing defendants' motion to dismiss the conspiracy count, and, as we read the record, struck the evidence of the six various conversations from the record and admonished the jury they should disregard such testimony.²

(B) Unlike the first trial, the jury in the second trial failed to convict the appealing defendants on Counts III and VII, but did convict them on Count IV, i. e., transporting and concealing, or facilitating the transportation or concealment, of narcotics.

(C) While there is not the slightest evidence that either appealing defendant at any time had actual or physical possession of any heroin introduced into evidence, or any narcotics connected with the sale of August 2, 1960, the preceding sale of July 20, 1960, or the subsequent sale of August 26, 1960, there was introduced into evidence through the testimony of the boy, Ramirez (a) much testimony concerning the use by these appealing defendants of marihuana "about five times" during the months of June and July 1960, and (b) possession of heroin during the same two months by the appealing defendants at their place of business, the cabinet shop, located at 4010 Whittier Boulevard.³ Such evidence was introduced, over objection, on the issue of intent,⁴ i. e., proof of the possession of drugs on occasions other than those named in the substantive counts to show the possession to be subsequently proved would not wholly be unintentional or accidental.

The trial court admonished the jury:

"The government can\'t prove * * * the man committed an offense on Wednesday by proving he committed it on Sunday. That isn\'t what these defendants are charged with. They are charged with committing offenses in July and August.

"Now, the two heroin offenses charged in Counts 3 and 4 apparently relate to the same amount of heroin on the same date of August 2, 1960; and the conspiracy charge is alleged to have been begun on or about July 20, 1960, and continued until August 29, 1960. So this evidence deals with alleged conduct prior to anything charged in the indictment. So in considering it you must first lay all this evidence aside and consider, has the Government established beyond all reasonable doubt * * * by other evidence that these defendants did the acts charged in any one of the counts of this indictment. If you determine from the other evidence in the case beyond a reasonable doubt that these defendants have so done those acts, then in determining the state of mind or intent with which they did those acts, you may consider evidence as to earlier acts of a similar or like nature to negative the mistake, show it wasn\'t a mistake — if they erred, they knew what they were doing — to show the intent or state of mind with which the acts were done." (Tr. 314.)

All evidence as to the prior possession of marihuana (on several occasions) and heroin (on one occasion) was likewise received subject to a motion to strike.⁵ Without presently reaching the question whether proof of the prior use of a marihuana cigarette is admissible to show intent to facilitate the sale or concealment of heroin, we will first consider...