Good v. United States

• Decision Date: 28 August 1969
• Docket Number: No. 26082 Summary Calendar.,26082 Summary Calendar.
• Citation: 410 F.2d 1217
• Parties: Howard C. GOOD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.2d 1217 (1969)

Howard C. GOOD, Appellant, v. UNITED STATES of America, Appellee.

No. 26082 Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 24, 1969.

Rehearing August 28, 1969.

COPYRIGHT MATERIAL OMITTED

Clyde W. Woody, Marian S. Rosen, Woody & Rosen, Houston, Tex., for appellant.

Morton L. Susman, U. S. Atty., James R. Gough, Asst. U. S. Atty., Homero M. Lopez, Carl Walker, Jr., Asst. U. S. Attys., Houston, Tex., for appellee.

Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant Howard Good was convicted by a jury on all four counts of a narcotics indictment. The first count charged him with unlawfully conspiring to import a single package of 533 grams of heroin in violation of 21 U.S.C. § 174; the second and third counts charged substantive violations of the same statute. The fourth, a tax count relating to the same lot of heroin, came under 26 U.S.C. § 4704. The relevant facts, in the light most favorable to the Government, can be stated briefly. Howard Good was seen going across the border from Roma, Texas to Miguel Aleman, Mexico on November 4, 1967 and was seen during the day with people later identified as Mexican smugglers. He returned from Mexico the same day. On November 6 and 7, customs inspectors received information that a large quantity of heroin was going to be smuggled across the border into Roma by Mexican smugglers. On the evening of November 7, the officers saw a man named Hershel Nutt take a package from an unidentified man at a cemetery known to be a customary delivery point for the Mexican smugglers. Later, Nutt was arrested and the heroin was found in his car. He decided to co-operate by driving with the officers to Houston and placing a call to Howard Good. In about fifteen minutes, Good drove his car in the vicinity of Nutt's car but elected not to make contact. Nutt's testimony indicated that Good did most of the planning for the smuggling of the heroin across the border and for the transfer from the smuggler to Nutt on the American side. Nutt said he was to have made delivery to Good in Houston.

Having studied the briefs and voluminous record, we have concluded that none of appellant's eight points of error requires reversal.¹ First, he urged that his privilege against self-incrimination was violated as a result of his being required by 18 U.S.C. § 1407 to register at the U. S.-Mexican border as a person previously convicted of a narcotics violation. An examination of the record discloses that the trial judge excised every reference in the indictment to the fact that appellant registered at the border on November 4, 1967 and that no testimony was allowed before the jury to show that he complied with the statute. As the court observed in denying the motion for judgment of acquittal, the fact that appellant entered Mexico from Roma, Texas was "proved by independent witnesses who saw him enter and leave, and no mention was made of his registering." Furthermore, appellant was not charged with any crime for registering and crossing the border. Similar attacks on the constitutionality of 18 U.S.C. § 1407 have been rejected by this Court, Palma v. United States, 5th Cir. 1958, 261 F.2d 93, and other courts, Allen v. Meier, 9th Cir. 1967, 374 F.2d 447; Reyes v. United States, 9th Cir. 1958, 258 F.2d 774; United States v. Eramdjian, S.D.Calif.1957, 155 F.Supp. 914. We reaffirm our decision in Palma.

Also in the first point of error, appellant attacks his conviction under 26 U.S.C. § 4704 for purchasing heroin not in the original stamped package or from the original stamped package, saying that the tax statute is unconstitutional because compliance therewith would require a person to incriminate himself. The statute under attack is similar to the marijuana tax statute, 26 U.S.C. § 4744, which we have previously upheld as against fifth-amendment challenges which were based on Supreme Court decisions in Marchetti and Grosso, the gambling tax cases. See, e. g., Thompson v. United States, 5th Cir. 1968, 403 F.2d 209; Leary v. United States, 5th Cir. 1968, 392 F.2d 220 (cert. granted). Our decisions holding that the marijuana statute is not vulnerable to an assertion of the privilege against self-incrimination foreclose appellant's contention as to the heroin tax statute.

In his second point, appellant insists that the court erred in admitting out-of-court declarations by Hershel Nutt, a co-conspirator, made after Nutt's arrest and not in furtherance of the conspiracy. This hearsay argument is totally devoid of merit since Nutt testified at the trial for the Government and was vigorously cross-examined by the defense. In making this argument, appellant refers to the testimony of a customs inspector as to what happened after Nutt's arrest. A study of the record discloses that this testimony related to Nutt's actions rather than his declarations. Moreover, to the extent that out-of-court declarations by a co-conspirator were involved, they did not relate to Appellant Howard Good.

Next, it is argued that appellant's privilege against self-incrimination was abridged when he gave his home address to the officers. He says that this information was material because it enabled the officers to run down certain telephone calls to and from the address. The record shows that after an adequate Miranda warning had been given, appellant furnished officers with his home address and asked that his automobile be taken there and that his father be instructed to call a lawyer. Good was allowed to drive his car to his home and once there he requested his father to call a lawyer. The home address was furnished voluntarily after an adequate warning had been given and was not incriminating. There was no error.

In his fourth point, appellant complains of prejudice resulting from the testimony of a co-defendant who had pled guilty to the narcotics charges and was permitted to testify before he had been sentenced. Certainly Nutt's testimony hurt Good's case, but in cross-examining Nutt, counsel for appellant thoroughly acquainted the jury with the facts surrounding Nutt's testimony, the opportunity for coercion, and the likelihood of Nutt's having something to gain by cooperating with the Government. The trial judge appropriately instructed the jury to exercise caution in assessing Nutt's credibility. Under these circumstances, there is no basis for finding reversible error.

Appellant complains next of the district court's sentencing procedure. During allocution, counsel moved for suppression of the presentence report or, in the alternative, for production of the report and inspection by defendant. Both motions were denied. Rule 32(c) (2) of the Federal Rules of Criminal Procedure provides that "the court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation." Thus, while disclosure is permissible and often desirable, it is ultimately a matter vested within the sound discretion of the trial judge. Baker v. United States, 4th Cir. 1968, 388 F.2d 931; United States v. Weiner, 3d Cir. 1967, 376 F.2d 42.

Also appellant complains that the court sentenced him to fifteen years as a second offender without complying with the procedure for second offenders outlined in 26 U.S.C. § 7237(c). The statute provides that if a person convicted under 21 U.S.C. § 174 is a second or subsequent offender, the United States Attorney shall file an information setting forth that the offender has a prior conviction. The offender then has the right to affirm or deny in open court that he is identical with the person previously convicted. If he denies the identity, sentencing shall be postponed for such time as to permit a trial by jury on the issue of the offender's identity with the person previously convicted. While appellant urges that this statutory procedure was not followed, the record discloses that during allocution the trial judge asked him whether he had been previously convicted and given ten years and he said he had. Then, counsel asked the court to consider that Good's ten-year sentence as a...