Mendez v. United States, 24548.

• Decision Date: 30 June 1970
• Docket Number: No. 24548.,24548.
• Citation: 429 F.2d 124
• Parties: Raymond R. MENDEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

429 F.2d 124 (1970)

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

No. 24548.

United States Court of Appeals, Ninth Circuit.

June 30, 1970.

Philip N. Andreen (argued), San Diego, Cal., for appellant.

Shelby R. Gott (argued), Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

Before BROWNING and ELY, Circuit Judges, and BYRNE^*, District Judge.

BYRNE, District Judge:

About 10:40 P.M., on November 11, 1968, Mendez drove a 1956 Buick into the United States from Mexicali, accompanied by the co-defendant, Beverly Medina. Both made a negative customs declaration. The trunk of the car contained a square metal box, which was covered by a rug and was accessible only from the rear seat.

A search of the car revealed 165 pounds of marijuana concealed in the metal box. In Mendez's wallet was found a manila envelope containing a small amount of manicured marijuana. A dexamyl capsule was discovered in Mrs. Medina's purse.

Appellant Mendez was charged in a two count indictment with (1) smuggling the manicured marijuana found in his wallet and (2) smuggling the 165 pounds of marijuana found in the trunk of the car he was driving.

Mendez's companion, Beverly Medina, was charged with smuggling the 165 pounds of marijuana, and in a second count with smuggling a single capsule of the drug dexamyl. The district judge granted Medina's motion for acquittal as to both counts without submitting her case to the jury.

The jury found Mendez not guilty of the charge of smuggling the 165 pounds of marijuana, and guilty of the charge of smuggling the manicured marijuana. The appellant has asked us to set aside his conviction for smuggling this manicured marijuana found in his wallet.

Appellant contends that in view of our recent decision in Smith v. Rhay, 419 F. 2d 160 (December 2, 1969), adequate pre-interrogation warnings were not given in accord with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

In Smith a parolee in the custody of a sheriff and his parole officer was only advised by the parole officer that "he had the right to an attorney or to have the court appoint one for him". We held there that:

"As to the introduction at trial of Smith\'s oral confessions, the record does not clearly disclose that he (Smith) was warned of his rights with the specificity required in Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

"Although Smith was told that he had the right to an attorney, he was not * * * told, as required by Miranda, that he had the right to the presence of an attorney and that, if he could not afford one, a lawyer could be appointed to represent him prior to any questioning."¹

In view of the Smith record described as "confused and conflicting," a divided court decided that "the prosecution did not meet the heavy burden (of demonstrating that Smith knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel) which rested upon it".

Does the record in our case clearly show that Mendez was given the specific Miranda statement before any questioning began? It is clear from Agent Quick's testimony detailing the panoply of Constitutional rights he set forth before Mendez² that the Miranda statements were given before interrogation began.

After giving the Miranda statement, Quick testified: "I asked him if he understood what I told him." Significantly, Mendez replied that "he understood what I (Quick) was saying and he would answer my questions." Quick was also asked in trial: "Did he say whether or not he would talk to you about the case before the Court?" Quick replied: "He said he would answer my questions".

Appellant's contention that Smith v. Rhay requires reversal in this case has no merit.

As to appellant's contention that the introduction of evidence about his "silence" violated his Fifth Amendment right against compulsory self-incrimination, it was established by the Supreme Court in Miranda,supra, at 468, 86 S. Ct. at 1624, that:

"The prosecution may not * * * use at trial the fact that he (a defendant) stood mute or claimed his privilege in the face of an accusation."

Accord, Fowle v. United States, 410 F.2d 48 (CA 9 1969).

In the instant case, Medina told Quick that "they entered Mexico at Mexicali and proceeded directly to San Luis de Sonora, Mexico". Prior to this, Mendez told the agent that "he had only been to Mexicali".

After getting these apparently inconsistent stories, the Customs Agents took Medina before appellant Mendez and asked her to repeat her statement that they had gone to San Luis.

As to appellant's response, the prosecutor posed this question to Agent Quick:

"Upon confronting Mr. Mendez with Mr. Medina\'s (sic) statement that they had been to San Luis, what did Mr. Mendez say, if anything?"

The answer was: "He had nothing to say."

The trial court judge granted appellant's motion to strike the testimony. After granting the motion to strike, the trial judge denied appellant's motion for a mistrial which was grounded in the contention that any limiting instructions by the trial judge to the jury to disregard the stricken testimony would not remove the prejudicial impact of Mendez being caught in a lie.

Subsequent to limiting instructions to the jury, the motion for a mistrial was renewed on the same grounds and this time appellant's counsel included Mendez's refusal to sign the marijuana transfer tax form within its ambit.³ This motion was also denied.

With respect to the testimony relating to the refusal to sign the Tax Act forms (Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, had not been decided), in view of the general caution against deciding Constitutional questions which may be avoidable and in light of the fact that neither Mendez nor Medina was being prosecuted for failure to pay the tax, we believe that a better course would have been for the trial judge to have stricken the testimony on the grounds of relevancy.

In any event, we hold that the trial judge's limiting instructions were effective and he did not abuse his discretion in refusing to grant a mistrial.

It is unlikely that Mendez suffered any prejudice from the "admission" by silence that he and Medina had been in San Luis...