De Luna v. United States

• Decision Date: 09 February 1956
• Docket Number: No. 15625.,15625.
• Citation: 228 F.2d 114
• Parties: Gregorio Vega DE LUNA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 114 (1955)

Gregorio Vega DE LUNA, Appellant, v. UNITED STATES of America, Appellee.

No. 15625.

United States Court of Appeals Fifth Circuit.

December 21, 1955.

Rehearing Denied February 9, 1956.

Leonard Brown, Guy Bonham, San Antonio, Tex., for appellant.

Harman Parrott, Asst. U. S. Atty., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellee.

Before HOLMES, RIVES and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

Appellant and his co-defendants waived a jury trial in writing, as permitted by Rule 23, Federal Rules of Criminal Procedure, 18 U.S.C.A., and were tried by the court without a jury. The court made a general finding that the appellant was guilty under Counts 8 and 9 of a nine-count indictment, and sentenced him to imprisonment for a term of four years and to pay a fine of $100.00. Count 8 charged that appellant and his co-defendants "fraudulently and knowingly received, concealed and facilitated the transportation and concealment of a narcotic drug, to-wit; 701 grains of heroin, after the said narcotic drug had been imported and brought into the United States contrary to law." Count 9 charged that the appellant and his co-defendants "knowingly and fraudulently purchased from some person to the grand jury unknown, 701 grains of heroin not in or from the original stamped package." See 21 U.S.C.A. § 174. The only question presented by the appeal is the sufficiency of the evidence to sustain the appellant's conviction.

On the night in question, a narcotic agent contacted co-defendant Flores and arranged for a prompt delivery of a large quantity of heroin to a certain cafe in New Braunfels, Texas. About an hour later, appellant drove by the cafe, then circled back and parked. Flores, who was a passenger, went into the cafe and was followed in a moment by appellant. They were both arrested. On the person of Flores, the agent found 701 grains of heroin and two pistols. A third pistol was found in the glove compartment of appellant's car. Through the serial numbers on the guns, one of the pistols carried by Flores and the pistol found in the glove compartment of appellant's car were identified as having been sold to the appellant by a pawn broker in Denver. The pawn broker appeared as a witness and identified appellant as the person to whom he had sold the pistols on September 30, 1954, about six weeks before the arrest. On the occasion of a previous sale of narcotics to the same agent, co-defendant Flores had displayed a small "white, silver colored looking pistol, .32, I think, and showed it to us, and said, `I was scared I was going to get hijacked.' I told him I was scared we were going to get hijacked too, and I showed him my gun under a pillow."

After the arrest, appellant was told of his rights and stated to the agents that he did not know anything about the heroin; that he had met Flores some weeks before, and on this particular night he was driving from San Antonio to San Marcos beyond New Braunfels and, on his way out of San Antonio, he saw Flores hitchhiking and recognizing him, picked him up and carried him to New Braunfels, some 30 miles away.

Citing Young v. United States, 5 Cir., 97 F.2d 200, 117 A.L.R. 316,¹ appellant insists that it must be presumed that such statement is true until the Government proves it false beyond a reasonable doubt. In addition, appellant urges that the only evidence of his knowledge and participation in the crime was circumstantial and very weak, and did not exclude every hypothesis except that of guilt; that there was no proof that appellant knew that Flores had heroin with him, or that he and Flores had ever been seen together except at the time of their initial meeting and on the night in question.

The Government points out first that appellant made no motion for judgment of acquittal, apparently relying upon the rule, that in the absence of such a motion the sufficiency of the evidence will be reviewed by the appellate court only to prevent a manifest miscarriage of justice. See Demos v. United States, 5 Cir., 205 F.2d 596; Colt v. United States, 5 Cir., 160 F.2d 650. Rule 29 of the Federal Rules of Criminal Procedure substituted motions for judgment of acquittal in lieu of motions for directed verdict. It seems to us that there is no occasion for such a motion in a trial by the court without a jury under Rule 23, Federal Rules of Criminal Procedure. It must naturally be assumed on such a...