Mendez v. United States, 19269.

• Citation: 349 F.2d 650
• Decision Date: 16 August 1965
• Docket Number: No. 19269.,19269.
• Parties: Raymond L. MENDEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

349 F.2d 650 (1965)

Raymond L. MENDEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 19269.

United States Court of Appeals Ninth Circuit.

August 16, 1965.

Eric J. Schmidt, San Francisco, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Sec.; Arthur I. Berman, Michael Balaban, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before HAMLIN, BROWNING and DUNIWAY, Circuit Judges.

HAMLIN, Circuit Judge.

On February 14, 1963, a four-count indictment was returned against Raymond L. Mendez, appellant herein, and several others by the Federal Grand Jury for the Southern District of California, Central Division.

Count One charged appellant and his several co-defendants with conspiring with intent to defraud the United States by knowingly receiving, concealing, transporting and facilitating the concealment and transportation of marihuana, knowing the same to have been imported into the United States contrary to law, in violation of 21 U.S.C. § 176a.

Count Two charged that appellant conspired with the same persons, with intent to defraud the United States, to transport, conceal and facilitate the transportation and concealment of marihuana which they had acquired without having paid the transfer tax imposed by 26 U. S.C. § 4741(a), in violation of 26 U.S.C. § 4744.

Count Three charged appellant and one Koor with the knowing concealment of 20 pounds of marihuana on October 6, 1962.

Count Four charged one of appellant's alleged co-conspirators with unlawful possession of marihuana.

Appellant was arraigned, entered a plea of not guilty, and following a court trial was convicted on all three counts in which he was named (Counts One, Two and Three). On June 3, 1963, the court denied appellant's motion for a new trial and sentenced him to ten years on each of the three counts, the sentences to run concurrently. Appellant filed a timely notice of appeal, and on April 29, 1964, this court filed an order granting appellant leave to appeal in forma pauperis. This court has jurisdiction under 28 U.S. C. § 1291 and § 1294.

Throughout the trial and on appeal, appellant was represented by court appointed counsel.

No contention is made on this appeal in the brief filed by appellant's counsel that substantial evidence is lacking to support the appellant's convictions on each of the three counts. Appellant's counsel's brief raises two points: (1) That the court erred in permitting joinder of substantive counts against appellant and another co-conspirator (Counts Three and Four, respectively) and conspiracy counts against six alleged co-conspirators and appellant, with a joint trial on all counts, and (2) that the indictment is duplicitous in that the conspiracy charged in Count Two is the same offense charged in Count One.

It is not disputed that appellant was a central figure in the conspiracies alleged in the indictment. Moreover, the only substantive count against the appellant was that alleged in Count Three, which charged the concealment of marihuana by appellant and one Koor, a fellow co-conspirator. This allegedly took place during one of the transactions involved in the conspiracies alleged in the indictment. Under these circumstances, appellant's argument that there has been a misjoinder of both defendants and offenses here is without merit.¹ Moreover, since this issue was not raised below, it would appear that the appellant has waived the matter because of his failure to object. See Rule 12(b) (2) of the Federal Rules of Criminal Procedure. Although Rule 14 permits the trial court to order severance of either offenses or defendants if it appears that a defendant may be prejudiced by joinder, the appellant does not show wherein the appellant was prejudiced by the court's failure to do so. The failure of the court to order severance is not a basis for reversal absent a showing that the court clearly abused its discretion in this regard. We see no such abuse of discretion.

Appellant's counsel makes no contention that appellant was not properly convicted on the charges contained in Counts One and Three of the indictment. He contends, however, that his conviction on Count Two should be set aside since he alleges that the charge in Count Two is identical with the charge in Count One. We do not reach the merits of this contention, since the sentences imposed upon all three counts were identical and were ordered to run concurrently with each other. Winger v. United States, 233 F.2d 440 (9th Cir. 1956); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1957); Byrnes v. United States, 327 F.2d 825 (9th Cir. 1964); King v. United States, 279 F.2d 342 (9th Cir. 1960). Although counsel requests that we reconsider the rule set forth in the above cited cases, we decline to do so.

On or about the day this case was set for oral argument before this court there was brought to the attention of the court the fact that the appellant, who was then serving his sentence in a penitentiary, had addressed a request to the court that a copy of the transcript of the proceedings of the district court be forwarded to him and a further request that he be permitted to personally file a brief in the case. The court granted this request and approximately ninety days later a brief was received by the court on behalf of the appellant personally.

In this brief appellant makes two main contentions: One, that certain statements made by him shortly after his arrest were wrongfully admitted into evidence, and, second, that transcripts of certain telephone conversations between appellant and another concerning the purchase and sale of the marihuana which had been heard by police officers were wrongfully admitted into evidence.

We have examined the record as to the statements made by the appellant. The substance of them are as follows. At the time of appellant's arrest he was asked if there was any marihuana in the automobile and he did not reply. The appellant then asked the arresting officer a question. As testified to by the arresting officer, he said, "He asked me where he made his mistake." Later that day, when appellant was being booked at the county jail and he was called to the telephone, a customs agent...