Juvera v. United States, 20179.

• Decision Date: 03 July 1967
• Docket Number: No. 20179.,20179.
• Citation: 378 F.2d 433
• Parties: Jacob JUVERA, Benito Juvera and Daniel Juvera, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 433 (1967)

Jacob JUVERA, Benito Juvera and Daniel Juvera, Appellants, v. UNITED STATES of America, Appellee.

No. 20179.

United States Court of Appeals Ninth Circuit.

May 9, 1967.

Rehearings Denied July 3, 1967.

Edward I. Gritz, Russell E. Parsons, Los Angeles, Cal., for appellants.

Warren Wilson, San Francisco, Cal., for appellant, Jacob Juvera.

John L. Cardoza, San Francisco, Cal., for appellant Benito Juvera.

Manuel L. Real, former U. S. Atty., Wm. M. Byrne, Jr., present U. S. Atty., John K. Van de Kamp, Chief Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Asst. Chief Crim. Div., Donald C. Smaltz, Gerald Uelman, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before POPE, MERRILL and KOELSCH, Circuit Judges.

POPE, Circuit Judge:

The appellants are three brothers who at the times here in question resided in or near Los Angeles, California. They were jointly indicted and charged in two counts with knowingly importing and bringing some 426 grams of heroin, a narcotic drug, into the United States from Mexico, and with knowingly and unlawfully concealing and facilitating the concealment and transportation of that quantity of heroin, which, as the defendants then and there knew, previously had been illegally imported into the United States. All three defendants were found guilty by jury verdict and sentenced to terms of imprisonment, from which sentences each of them has appealed to this court.

What transpired in the process of importing this heroin from Tijuana, Mexico, to Los Angeles, is undisputed. The mode adopted by those undertaking the importation was an elaborate one. It was cleverly planned and executed. And another extraordinary feature of the importation process was that the person hired and paid to move the narcotics across the line informed the government agents of every move made by him and by the defendants in receiving the narcotics; and, in consequence, except for a period of but a few moments, the vehicle carrying the heroin, and the persons receiving it or riding in it, were under constant surveillance by these agents, a surveillance carried on by as many as a dozen such agents, operating in separate government cars and in continuous radio contact with each other. Hence these agents were able to testify as to exactly what each participant in the importation, including the defendants, was doing at all times on the date in question.

An examination of all these details showing just how the importation was accomplished, and what part each participant played, leads to the necessary and unavoidable conclusion that the whole enterprise was pursuant to a carefully designed plan and that each of the defendants was playing his assigned part in that plan, all of the details of which were precisely as carried out and performed.

The importation referred to occurred on March 2, 1964. The plan began at Tijuana and was put in motion by one Raul Gonzales who resided there. Gonzales bought a 1951 Plymouth automobile equipped with California license plates and arranged with one Miramontes, also a resident of Tijuana, to bring the automobile to Los Angeles. Gonzales, with some tools which he owned, cut a hole in the sill under the right hand front door of the Plymouth automobile, making a trench-like opening large enough to contain five rubber condoms containing heroin. He then covered this trench with metal cover and sealed over the hole or opening with grease and dirt so as to obscure the fact that an opening had been there. Gonzales then instructed Miramontes where to deliver the Plymouth car and its contents and paid him $200 for this service. As a part of the instructions he handed Miramontes a post card with a picture of a motel known as the Tick Tock Motel at 1444 South Atlantic Boulevard, Los Angeles. On the card was the motel's telephone number and written on the card was the name "Daniel", the name of one of the three brothers. This card, thus marked, served as Miramontes' guide as to where and how to reach the defendants, the intended recipients.

Miramontes kept the government agents informed of his movements and of the fact that he was transporting heroin in the car. As he passed through San Diego he stopped at a garage where several government agents were waiting for his arrival. While he was there the agents opened up the recess in the door sill and took photographs of the heroin and its containers and then recovered and re-sealed the place where the heroin was stored. Miramontes then continued his trip to Los Angeles and drove to a place known as Brandi's Coffee Shop. One of the government agents was there waiting. Miramontes entered the telephone booth at this drive-in eating place and then called the telephone number which was on the card showing the Tick Tock Motel which Gonzales had given him. A man answered when he called the number and Miramontes asked for "Daniel". The man answering said he was that person. Miramontes reported to him that he had left the freeway and did not know how to get to the Tick Tock Motel and asked for directions. The person answering, after identifying himself, asked Miramontes to wait until he could talk to his brother who was more familiar with the place. Miramontes then talked to the brother Jacob who asked for the telephone number from which Miramontes was calling. He asked for the location of Brandi's Coffee Shop and was told by Miramontes where it was located. Jacob then told Miramontes to wait there, "We are going over there to see if we can localize you or find you and if not, we will call you."

At the time Miramontes made this call Jacob and Daniel were outside the Tick Tock Motel near the telephone booth. Government customs agents were watching them. The brother Benito resided at the motel in a unit located next to the office and designated No. 26. Just prior to Miramontes' telephone call, Jacob was seated in a white Cadillac car. Standing just outside the Cadillac was Daniel. When the call came, Daniel first answered the telephone, then he called Jacob; and Jacob completed the telephone conversation with Miramontes, exchanging information as to where the parties were located and the telephone numbers, all as previously indicated. When the telephone rang Benito came out of the motel unit 26 and moved over to the telephone booth. All three brothers listened to the conversation. One of the government agents then moved over close to the office of the motel which was next to the telephone booth for the purpose of listening to the conversation. Benito approached the agent as he moved toward the phone booth and said to him, "What do you want?" The agent heard the reference to the telephone number of Brandi's Coffee Shop and made a note of it. After Jacob told Miramontes that they would come to Brandi's to try to find him, all three brothers got into a Buick automobile which belonged to Benito and which was parked in front of his unit. In 15 or 20 minutes they had reached the coffee shop. There Jacob got out of the Buick, went to Miramontes and learned he was the man they were looking for. Jacob then pointed out the others as his brothers. The brothers told Miramontes to follow the Buick with the Plymouth and Jacob got into the Plymouth with Miramontes and they all drove to the Tick Tock Motel. On arrival there Miramontes was sent into the motel bar to wait for the brothers. Miramontes saw the three brothers get into the Plymouth car together. That is the last he saw of them.

Nothing appears in the record as to how long the three brothers thus remained in the Plymouth. Mrs. Lang, a Los Angeles police officer who was also engaged in surveillance of the area, saw the Plymouth drive out the alley entrance. She was unable to say how many were in the Plymouth at that time. However, shortly thereafter the Plymouth car and the white Cadillac car were driven to Jacob's residence at 1520½ Beverly Terrace, Los Angeles, which was an apartment where Jacob and Daniel were living. Daniel drove the Plymouth car and Jacob drove the white Cadillac. Benito's Buick car remained parked opposite his unit 26 at the Tick Tock Motel where Benito remained. A number of government agents followed these two cars as they proceeded to the Beverly Terrace address and they described the course the cars traveled as a zig-zag one, proceeding by turning first right and then left in a manner indicating that they were attempting to avoid being followed. When Jacob and Daniel stopped at the address mentioned, they were both placed under arrest, and when Daniel was asked what he was doing with the Plymouth car he replied that he had stolen it. Both of these defendants were asked about narcotics in the apartment. Both gave the officers permission to search it. No narcotics were found in the apartment during the search, but a quantity of milk sugar, a product commonly used to cut or dilute heroin, was found. The officers also found three more Tick Tock Motel post cards indicating that Jacob or Daniel must have sent Gonzales the card he gave Miramontes.

Some of the officers then present returned to the Tick Tock Motel to talk to Benito who had gone to bed. Benito let them into his unit and stated that the Buick parked in front of the unit was his. He was then placed under arrest and notified that it was for narcotics violation. Benito was then taken to the government car. He was asked how they could get back to the residence of his brother and he said "Claude" lives at a certain address. The agent said "How about your other brothers?" He replied they were in the Los Angeles area but "I do not know exactly where they live." He was asked if he was not with them earlier in the evening and he replied: No, they had come by his place and borrowed his car but he himself had been with his wife at a party that evening and he had not been with his brothers in his own car that particular night. This was obviously a falsehood.

It is plain that the government officers made a...