Leyvas v. United States

• Decision Date: 13 August 1958
• Docket Number: No. 15700.,15700.
• Citation: 264 F.2d 272
• Parties: Enrique Reyes LEYVAS et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

264 F.2d 272 (1958)

Enrique Reyes LEYVAS et al., Appellants, v. UNITED STATES of America, Appellee.

No. 15700.

United States Court of Appeals Ninth Circuit.

August 13, 1958.

Gladys Towles Root, Forno & Umann, Burton Marks, Los Angeles, Cal., for appellants.

Laughlin E. Waters, U. S. Atty., Lloyd F. Dunn, Los Angeles, Cal., for appellee.

Before FEE, CHAMBERS and BARNES, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

Appellants Enrique Reyes Leyvas, Rudolph Reyes Leyvas, Seferino Reyes Leyvas, Rudolph Angel Lara, Alex Perez De La Loza, Raul Castulo Nunez, Angel Jose Padilla, Gilbert Queseda and Lonnie Rodriguez were indicted together with some twenty-five other persons upon a charge of conspiracy to violate the narcotic laws (21 U.S.C.A. § 174) and upon various other counts charging some of them with receiving, concealing, transporting and selling heroin. Appellants were tried by a jury. Motion was made by their attorney that they be furnished, at government expense, with a daily typewritten transcript. This was refused by the court. Motions for acquittal and mistrial were made at the close of the case for the prosecution. Ten other defendants were acquitted by the court at this time. These motions were denied as to appellants and one other defendant, William Pablo Holmes. At the end of the case, the court denied motions of appellants for acquittal, but entered judgment of acquittal for Holmes. Appellants were found guilty. Judgment was entered, and each was sentenced. Each has appealed, and the appeals have been consolidated.

Appellants say that several diverse conspiracies were involved and that these radiated from one central figure, as the spokes from the hub of a wheel. This would be ground for reversing the judgment of conviction for conspiracy, if it were true. However, the trial court exercised great care and circumspection to prevent trial of other issues not directly connected with the one illegal combination of which each of appellants is shown to have been a willing and knowing participant. The trial court severed transactions which might possibly have been considered independent transactions if viewed from a highly technical standpoint. The court ordered acquittal of all defendants who did not have some direct connection with appellant Rudolph Reyes Leyvas, who was the central figure of the conspiracy proved. The court struck all testimony relating to defendants acquitted from the record, and gave not only precautionary instructions in that regard, but also was painstaking in repeated admonitions to the jury to exclude from consideration evidence concerning the acquitted defendants. The latter had in general made purchases of heroin from one Jose Ruiz, a conspirator who eventually testified for the government and who was shown to have been associated in this criminal combination not only with Rudolph Reyes Leyvas, mentioned, but with almost every one of the other defendants. The evidence thus stricken was competent against each of these conspirators, because, although the purchases from Jose Ruiz did not happen in the presence of any of the other appellants, such testimony did show the nature and extent of the illegal combination.

Indeed, the trial court may have been hypertechnical in acquitting these defendants. Each of them was dealing in and came into possession of a contraband article knowingly and willfully. There was an unlawful conspiracy proved between Rudolph Reyes Leyvas and others to violate the law by engaging in the receiving, concealing, transporting and selling of heroin contrary to a federal statute. The purpose of each to resell was not a necessary element, but in any event could have been inferred. The adherence to a unified conspiracy could have been found by the jury. In order to participate in an unlawful combination, one need not know the description or identity of the principal conspirators or the number or names of the other associates in crime. One must, it is true, know the illegal nature of the enterprise and its general purposes and implications, and voluntarily and willfully act in concert with the others in the criminal activities.

If he does join in criminal acts with intent willfully to carry out the illegal design shared in common with others, he need not know the extent of the operations or the number of the confederates. Therefore, appellants could not have been prejudiced by this evidence as to the nature and extent of the acts of others who joined in illegal transactions in furtherance of a conspiracy of which certain of the appellants were the originators and the key figures. Appellants were bound by the acts of all others who joined the criminal combination and moved in concert to accomplish the illegal design, whether a particular appellant knew the identity of any such participants or the number and description of all such confederates.

Appellants complain that the trial court did not give an instruction to the effect that a defendant cannot be found guilty "on circumstantial evidence alone" "unless the proved circumstances are not only consistent with the hypothesis that the defendant is guilty of the crime, but are irreconcilable with any other rational conclusion."

This omission was not error. Appellants did not ask for such an instruction, and did not except because it was not given. We will not consider the omission as plain error to which no exception was taken. It was not error.

This instruction has been the subject of grave criticism. Many trial courts refuse to give it. It should never be given when the evidence is not wholly circumstantial. Here practically all proof as to each conspirator is direct. The only prime fact which may be said to have been established by circumstantial evidence is that appellants were dealing in narcotics. However that may be, the record establishes beyond peradventure that the dealings were exclusively in narcotics, especially heroin. Often indirect evidence is more persuasive than direct. People do not carry snuff around in a certain type rubber container used for that purpose only in the narcotics trade. They do not cut snuff with milk sugar before sale. Purchasers do not pay over four hundred dollars for an ounce of any other brown powder normally. Nor do the purchasers and sellers take "fixes" of any other substance to establish verity. Purchasers of other materials do not claim swindles if the results expected from heroin are not obtained by "fixing." The record reeks with the argot of traffickers in products of the poppy. The record shows beyond cavil that here was a tremendous dispensing operation of forbidden drugs. We adjudge that, as to each of appellants, the proved circumstances are not only consistent with the hypothesis that the particular defendant is guilty, but are irreconcilable with any other conclusion.

The convicted defendants were not fringe dealers or purchasers. Some of them were the "big shots," as they are vulgarly called. Some were the importers and operators who were the heart and soul of the conspiracy. The evidence will be reviewed only to show that there was a wholesale importing and dispensing operation, and that each defendant knowingly and willfully performed a criminal part therein. Rudolph Reyes Leyvas, as before noted, was the key figure. He was proved to have a direct connection with each person and transaction in the operation in which any other appellant took part, and a connection indirectly in many others. Angel Jose Padilla induced Jose Vasquez Ruiz to use heroin. After a considerable use of the narcotic, Padilla took the witness to see Rudolph Reyes Leyvas, referred to above. Leyvas refused to sell the ounce of heroin sought by Padilla. Padilla gave Ruiz $180.00 thereafter, and he was told to go back to Rudolph Leyvas and promise to pay the balance for an ounce. Rudolph Leyvas later gave Ruiz a folded newspaper, within which, when opened subsequently by Padilla, was found white carbon paper containing a brownish powder. Padilla and Ruiz then met two girls, to whom a portion of the brown powder was sold for $30.00, and each of the four persons present "fixed." Thereafter, Rudolph Leyvas introduced Jose Vasquez Ruiz to one Rudy Ruiz, who will hereafter be called "Big Rudy," and Rudolph Leyvas then told Big Rudy that Jose Ruiz would thereafter buy from Big Rudy. Whereupon, the latter sold some brown powder to Jose Ruiz. In 1949 Jose Ruiz went to a hotel where Rudolph and Seferino Leyvas were living. He found some brown powder, "fixed" with it, and thereafter, when he met Seferino Leyvas, he paid the latter for the powder used, warning the latter to be more careful in placing narcotics. Jose Ruiz was thereafter in prison until about September 10, 1953, when he was deported to Mexico. He returned illegally to the United States on September 11. Thereafter, he met Rudolph Leyvas with the defendant Raul Castulo...