Fernandez-Delgado v. United States

• Decision Date: 27 October 1966
• Docket Number: No. 20647.,20647.
• Citation: 368 F.2d 34
• Parties: Orlando FERNANDEZ-DELGADO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

368 F.2d 34 (1966)

Orlando FERNANDEZ-DELGADO, Appellant, v. UNITED STATES of America, Appellee.

No. 20647.

United States Court of Appeals Ninth Circuit.

October 27, 1966.

Charles Abbott, Jr., Escondido, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief Crim. Div., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY and BROWNING, Circuit J?udges, and PLUMMER, District Judge.

PLUMMER, District Judge.

Appellant, after a trial by the court without a jury, was found guilty of conspiring to smuggle marihuana, and aiding and abetting the smuggling of marihuana in violation of 21 U.S.C.A. ? 176a and 18 U.S.C.A. ? 2. He was sentenced to imprisonment for a period of six years on each of the two counts with the sentences to run concurrently. Appellant has appealed from this judgment and sentence.

Jurisdiction existed below under 18 U.S.C.A. ? 3231, and exists here in 28 U.S.C.A. ?? 1291 and 1294.

On this appeal the sole question is the sufficiency of the evidence. This in turn depends upon whether certain oral admissions made by appellant were involuntary and therefore improperly admitted into evidence. Counsel for appellant in argument before this court conceded that if defendant's extra-judicial admissions were properly admitted by the trial court, the evidence was sufficient to sustain the convictions. Because of this concession the evidence will not be recitein detail.

Although appellant did not specifically raise the question of the voluntariness of the admissions in the lower court, this point was considered and passed upon by the trial judge in connection with appellant's motion to dismiss on the grounds of insufficiency of evidence made at the close of the trial.

The circumstances surrounding the admissions made by appellant are as follows: On May 31, 1965, appellant was arrested by agents of the U. S. Customs Service at or near San Diego, California. On that date appellant was advised of his rights by Agent Gates. He was thereafter confined in the county jail in San Diego. On June 8, 1965, Gates received word at his office that appellant wished to talk to the officer who was investigating his case. At approximately 11:30 a. m. on June 8, 1965, Gates and Customs Patrol Inspector David Burnett talked with appellant in the San Diego County Jail. On this date Gates again advised appellant of his rights at the very outset of the interview. Before talking with appellant Gates told appellant that he did not have to tell him anything he did not wish to, that anything he did say could be used against him should he go to court at some future time, and that he was entitled to the services of an attorney.

Thereafter appellant made the admissions which appellant's counsel now claims were involuntarily made as the result of promises made by Gates. Appellant also advised Gates that he wished to be at liberty to assist the Government in catching other marihuana smugglers. Gates advised appellant that he would assist him to get out on bail and that any assistance appellant gave the Government would be brought to the attention of the United States Attorney. Gates also told appellant that he could make him no promises. At the close of the interview and just prior to Gates' departure from the San Diego County Jail he advised appellant that there was such a thing as a tax count.

On the trial of the case the appellant took the stand to testify in his own behalf. In doing so he did not acknowledge that he had made the admissions testified to by Gates, nor did he claim that he...