Government of Canal Zone v. Sierra

• Decision Date: 26 April 1979
• Docket Number: No. 77-5551,77-5551
• Parties: GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. David SIERRA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 60

594 F.2d 60

GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. David SIERRA, Jr., Defendant-Appellant.

No. 77-5551.

United States Court of Appeals, Fifth Circuit.

April 26, 1979.

Daniel D. Douglass (Court-appointed), Balboa, Canal Zone, for defendant-appellant.

Frank J. Violanti, U. S. Atty., Wallace D. Baldwin, Asst. U. S. Atty., Balboa, Canal Zone, for plaintiff-appellee.

Appeals from the United States District Court for the District of the Canal Zone.

Before GOLDBERG, Circuit Judge, SKELTON, Senior Judge ^*, and FAY, Circuit Judge.

SKELTON, Senior Judge.

Appellant, David Sierra, Jr., was charged by information with first-degree murder of Ovidio de Jesus Marin R. (Ramirez) in violation of Panama Canal Zone Code Title 6, § 1183(a) and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a). The cases were consolidated and the offense of first-degree murder was reduced to second-degree murder, after which the Appellant pleaded guilty to the consolidated charges. He was thereupon sentenced to life imprisonment on the murder charge and to five years imprisonment on the marijuana charge to be served concurrently with the sentence in the murder charge. The Appellant appealed these sentences and this court reversed and remanded both convictions on January 27, 1977, on the ground that the district court had failed to fully explain the charges to Appellant and had failed to fully interrogate him as to his understanding of the charges when he pleaded guilty to them. See Sierra v. Government of the Canal Zone, 546 F.2d 77 (5 Cir. 1977).

On remand, Appellant was allowed to replead, and he pleaded not guilty to both charges. The consolidated case was set for trial, whereupon Appellant filed a motion to suppress (1) his confession, and (2) items seized in the search of Appellant's home and automobile. A lengthy hearing was conducted on the motion after which the district court denied it. The Appellant was then tried before a jury and convicted on both charges. He was again sentenced to life imprisonment on the murder charge and to five years imprisonment on the marijuana charge to be served concurrently with the murder sentence. The Appellant has appealed his murder conviction to this court in the instant action, but has not appealed his conviction of the marijuana charge. The Appellant contends that the trial court erred (1) in admitting into evidence his written and signed confession; and (2) in admitting into evidence items seized in a search of his home and automobile. We find and conclude, however, that the trial court did not commit error in admitting such items into evidence, and that Appellant's conviction should be affirmed.

I. FACTS

The saga of this case first began when Appellant was arrested for possession of marijuana on October 5, 1973, in the Panama Canal Zone. He was advised of his rights at the scene of the arrest and he indicated that he understood those rights. He chose to cooperate with the police. In fact, Appellant took police officers to an area in the Canal Zone where he had stored the marijuana prior to the time of his arrest. Appellant failed to fully cooperate, however, as he refused to identify the source from whom he had obtained the contraband. On Monday, October 8th, Appellant was taken before the Balboa Magistrate Court, advised of the charge against him, warned of his rights, and the public defender was appointed to represent him.

On the morning of October 9th, Appellant requested to see Detective Steele, indicating that he was interested in cooperating further. Detective Steele cleared this meeting with both the United States Attorney and the public defender. At this time, Appellant named his supplier as a Colombian called "Antonio." Furthermore, Appellant agreed to act as an undercover agent and assist police in making a case against "Antonio." In return for this help, the charges against Appellant were held in abeyance and he was released on his own recognizance. Appellant was required, however, to maintain daily contact with police.

On October 12th, Appellant arranged a meeting between "Antonio" and an undercover operative of the Balboa narcotics unit, Officer Daniel Maravilla. At this meeting, "Antonio" was introduced as Miguel. ¹ Officer Maravilla arranged to purchase some marijuana from Miguel which was to be delivered around the 28th of October.

Subsequent to that meeting, from October 12th to October 24th, the Appellant continued to report in as required. However, from October 25th through October 30th, Appellant made no contact with the police and the police were unable to locate him.

On October 31st, Miguel's bullet-riddled body was found in the forest. Also on this date, Appellant contacted the police to check in. He was told to come to the police station right away. Appellant and his wife arrived at the police station at about 4:00 to 4:30 P.M., and he was immediately taken to the morgue where he confirmed the deceased's identity as being Miguel. Thereafter, Appellant, although not under arrest, was taken to a conference room and read his rights. He was then questioned by police, while his wife waited in another part of the station.

For about the first fifty minutes of the questioning Appellant denied having any knowledge of the killing, claiming that he had been home all day and night of October 30th, the date of the murder. He also claimed that the last time he had seen Miguel was during the meeting he had arranged on October 12th. But when a break for dinner was taken, it was discovered by the police that Appellant's wife, who had been talking to another police officer, told a different story and had said that on October 30th two men she believed to be Colombians had come to their home and that Appellant had left with them.

After dinner, when confronted with the discrepancy between his story and his wife's, Appellant changed his story. He then admitted that Miguel and an unidentified Negro came to his home on October 30th and that he had accompanied them on a trip to pick up the marijuana which Miguel had agreed to deliver. But this story was also exculpatory. Appellant stated that he had loaned the Negro his gun while on the trip and when the Negro began firing it in the forest, that he, the Appellant, got in the truck and left Miguel and the Negro there in the forest because he was afraid the shots would bring the police. Appellant stated that the following day the Negro returned his gun, off-loaded 350 pounds of marijuana into Appellant's house, and informed Appellant that he, the Negro, was now handling the marijuana deal and would make the delivery to the "gringo." Lastly, Appellant told police that the cartridge clip to his gun was hidden behind the stereo speaker in his house, that the marijuana was stacked in a closet of his home, and that he had hidden the gun in the house but couldn't remember where.

At this point the police told Appellant that they were in touch with the Panamanian authorities and that the Panamanians would probably search Appellant's house, since it was in the Republic of Panama. Appellant responded that he did not mind their searching his house, but was concerned for his children who would be at home. Mrs. Sierra, who was also advised of a probable search to be made by the Panamanians, assisted the police by making a drawing indicating how to get to the house. She also told them a truck and Appellant's car would be parked in front of the house.

The liaison officer of the Canal Zone police then contacted the Panamanian police (the DENI) who made arrangements with the Panamanian district attorney for the search of Appellant's house and car. The record does not show what these arrangements were. It is not known whether or not the Panamanian police obtained a search warrant, nor whether one was required under the laws of the Republic of Panama. In any event, the Canal Zone police had no control over what the DENI did.

The Panamanian police went to Appellant's house accompanied by the liaison officer of the Canal Zone police, and placed it under surveillance prior to 9:00 P.M., as the Negro was supposed to come to the house at that time according to the story of Appellant. After a long wait during which the Negro did not show up, the Panamanian police approached the house. The door to the house was open and there were some young people inside, the oldest being about 14 years of age. The DENI identified themselves and stated their purpose in being there. No objection was made by the occupants of the house. The Panamanian police then entered and searched the house and the car. They found about 350 pounds of marijuana, and also found the gun clip behind the stereo where Appellant had stated he had placed it. The pistol of Appellant was found in the glove compartment of his car. The marijuana, the gun and gun clip were then taken by the DENI to their headquarters where they were inventoried. The gun and gun clip were then released by the DENI to the liaison officer of the Canal Zone police.

While the search and surveillance were being conducted, the questioning of Appellant continued. At about 9:45 P.M. Appellant stated that he had not told the whole story, but would like to talk to his wife before telling the truth. Appellant then conversed with his wife for about 25 to 30 minutes, and at or about 10:15 P.M. began to give an inculpatory statement. The story he told began much like the one Appellant had previously related, but with these additions, he said that Miguel and the Negro began arguing about how they would divide some cocaine that they were planning to pick up. Miguel became angry and accused Appellant of siding with the Negro. Then Miguel started swearing and started toward the truck. Appellant remembered that there was a machete in the truck, whereupon he panicked and opened fire on Miguel with his pistol, shooting him in the back 5 times, and continuing to fire his gun until...