Garcia v. United States

• Decision Date: 20 May 1963
• Docket Number: No. 19916.,19916.
• Citation: 315 F.2d 679
• Parties: Anthony GARCIA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

315 F.2d 679 (1963)

Anthony GARCIA, Appellant, v. UNITED STATES of America, Appellee.

No. 19916.

United States Court of Appeals Fifth Circuit.

April 4, 1963.

Rehearing Denied May 20, 1963.

Clyde W. Woody, Houston, Tex., for appellant.

James R. Gough and William A. Jackson, Asst. U. S. Attys., Houston, Tex., Woodrow Seals, U. S. Atty., for appellee.

Before HUTCHESON, WISDOM and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

The appellant Garcia and three co-defendants were tried by a jury under an indictment charging them with a conspiracy to deal unlawfully in narcotics in violation of Title 21 U.S.C.A. § 174. One of the defendants was acquitted, but Garcia and two others were convicted. Garcia was also charged with and convicted of selling heroin in violation of Title 26 U.S.C.A. § 4705(a). Only Garcia has appealed.

Garcia here complains that the trial court committed reversible error: (1) in refusing to grant a severance; (2) in denying his motion for a mistrial because of the introduction of extra judicial statements by some of the co-defendants without sufficient instructions limiting such statements to the declarants; and (3) insufficiency of the evidence to support the jury verdict of guilty.

It was within the discretion of the trial judge to grant or refuse appellant's motion for a severance. Unless there was a clear abuse of discretion, no reversible error results. We find no error here. The rule is succinctly stated in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954):

"It was within the sound discretion of the trial judge as to whether the defendants should be tried together or severally * * *. To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions." (emphasis supplied)

We will now consider the second claim of error. The appellant does not contend that no instructions were given with respect to the claimed injurious declarations; but he contends that the instructions that were given were not sufficiently clear to protect him against the damaging implication that he was chargeable with such statements. He makes the further contention that the nature of the statements is such that he was prejudiced regardless of any instructions the court could have given.

The record shows that when each of the statements was admitted into evidence, the trial court instructed the jury, in varying degrees and terms, that the statement involved was to be considered only as against the declarant. Contrary to Garcia's contentions, at least some of the statements were made in furtherance of the conspiracy.

Government witness Lopez, a former drug addict, testified to the completion of several narcotics transactions with appellant. Lopez would call the appellant and appellant would arrange the meeting place where the transaction was to be consummated. Payment was made to the appellant each time for the narcotics received at the prior meeting and later sold. At such meetings, appellant would advise Lopez as to the amount of heroin he was to receive. Meetings were usually at night. Often four or five others were present at the meetings when Garcia made delivery to Lopez. After payment, the group would go to pick up the narcotics, which were never kept at the meeting place used by the appellant for the purpose of receiving payment. In the words of Lopez, "Anthony Garcia was supposed to let somebody, one of the ones that were there to show me where the place was, you know, to pick them up." The group traveled from the meeting place to the pick-up place in two cars; Garcia taking the lead alone in his own car, while the others followed in the second car. As Lopez stated, he would "* * * follow with four or five others with me and there would be one of them who was designated to pick up the narcotics, wherever it was, and then, he'll get off his car and pick up the narcotics and come up to my car and then we divided it." The narcotics were concealed in one bundle containing gram quantities when picked up. Garcia was never present when the narcotics were picked up and divided, but instead he drove away in his car. The narcotics were divided in Lopez' car.

Federal Narcotics Agent Jesse J. Bautista testified that one of the co-defendants, Cisneros, told him that he had been dealing with Garcia in the same manner as described by Lopez. Agent Bautista also testified that on March 7, 1960, he monitored a telephone call placed from the Office of the Federal Bureau of Narcotics in Houston by the witness Lopez to the appellant, stating that Lopez dialed the appellant's home telephone number which was known by Agent Bautista; that Agent Bautista who speaks Spanish fluently and was familiar with the appellant's voice, listened on one of the office extension telephones with the consent of Lopez. He heard Garcia answer the telephone, and heard Lopez ask Garcia if he could purchase additional heroin. Garcia answered that he had just been arrested by Houston Police and wanted to suspend his operations temporarily because he thought that one of his "muchachos" was working with the police. Garcia suggested that Lopez keep in touch with him, "When I'm back in business * * * which will be a few days * * * I'll let you know. We can get back in business." Other Narcotics Agents testified to similar conversations with various associates and co-conspirators of Garcia.

The Government's chief witness in proving the substantive counts was Louis Costello Garcia, who started using heroin in February 1960. By December 1960 he required 4 to 6 capsules per day. In December 1960 and January 1961, the witness Garcia lived in Houston and was buying heroin every 2 or 3 days from the appellant. From time to time he called appellant, who arranged meetings at various places. According to witness Garcia, he would pay the appellant for the heroin and then, "I would go to some location where the appellant would tell me to go get it." The evidence clearly shows that any statements made by the co-defendants which tended to implicate Garcia, were merely cumulative.

The record and appellant's brief clearly show that after each of the alleged objectionable statements, the court instructed the jury to consider such statement as against the declarant only. In addition to these separate instructions, the court fully explained the principle involved by the...