Sanchez v. United States

• Decision Date: 21 July 1961
• Docket Number: No. 16533.,16533.
• Citation: 293 F.2d 260
• Parties: Avelardo Felix SANCHEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

293 F.2d 260 (1961)

Avelardo Felix SANCHEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 16533.

United States Court of Appeals Eighth Circuit.

July 21, 1961.

Robert E. Brauer, St. Louis, Mo., for appellant.

William S. Fallon, Asst. U. S. Atty., St. Paul, Minn., for appellee. Clifford Janes, U. S. Atty., St. Paul, Minn., was with William S. Fallon, St. Paul, Minn., on the brief.

Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.

VOGEL, Circuit Judge.

This is an appeal from a judgment convicting the appellant, Avelardo Felix Sanchez, of the crimes charged against him in a three-count indictment. The three counts all arise from the alleged transfer of 30.6 grams of marihuana by the appellant to one Alfonso Orozco on January 11, 1960. Count 1 charged the appellant with unlawfully transferring the marihuana to Orozco in violation of 26 U.S.C.A. § 4742. Count 2 charged that the appellant, being the transferee of the marihuana required to pay the special tax imposed by 26 U.S.C.A. § 4741, obtained and acquired the marihuana without having paid the tax, in violation of 26 U.S. C.A. § 4744. Count 3 charged that the appellant unlawfully received, concealed, bought, sold and facilitated the transportation, concealment and sale of the marihuana after it had been imported and brought into the United States contrary to law, the appellant knowing it to have been so imported in violation of 21 U.S. C.A. § 174. Following a verdict of guilty on all counts, the appellant was, on May 23, 1960, given a general sentence on all counts of ten years' imprisonment. The appellant, having been previously convicted of an illegal transfer of marihuana eleven years prior thereto, was subject to a mandatory minimum sentence of ten years. 26 U.S.C.A. § 7237.

The evidence offered by the government in support of its charges against the appellant may be summarized as follows: On Sunday evening, January 10, 1960, Alfonso Orozco was arrested by Minneapolis police for having sold a quantity of marihuana on that same evening to Joanne Mims. Federal Narcotics Agent George Payne accompanied the Minneapolis police officers. He talked with Orozco. The latter agreed to cooperate with the federal government in securing evidence against his, Orozco's, source of supply. He was told by Payne that no promises could be made to him but that his cooperation would be made a matter of record and presented to the authorities, that it might make it easier for him, and that it would be up to the judge as to what the outcome would be. Orozco named the appellant as his source. He was then confined in the Minneapolis City Jail.

On the morning of January 11, 1960, Agents Payne and William D. Sineath secured Orozco's release from jail and with him drove to a point near Orozco's residence at 1701 Olson Highway, intending to take him to his apartment so that he could change his clothes and then go to his place of employment at the Music City Record Shop, 7th and Hennepin Avenue, Minneapolis. As they approached Orozco's apartment, they observed a 1950 Oldsmobile parked in front. Orozco identified the appellant as being one of the two occupants. The Narcotics Agents parked some distance behind the Oldsmobile. Orozco was instructed to approach the Oldsmobile and make arrangements with the appellant for the purchase of some marihuana. The transfer was to be made later in the day at the record shop where Orozco worked. Later that forenoon appellant did arrive at the record shop and he and Orozco entered a booth together, where the alleged transfer of marihuana took place. A signal that the transfer had been completed was given by Orozco. The Agents failed at that time to respond by making the arrest. Shortly after giving the signal Orozco left the booth and entered a work room in the rear of the record shop where he allegedly deposited a brown paper bag containing the marihuana which it is charged was transferred to him by the appellant while they were in the booth. Thereafter Orozco returned to the record booth where the appellant had remained and where he was arrested by Agents Payne and Sineath. A brown paper bag from the work room was found to have contained what ultimately was analyzed by a United States chemist as marihuana. The government's side of this story was adduced through Narcotics Agent George Payne, through Alfonso Orozco and to a lesser degree through Narcotics Agent William D. Sineath.

The appellant testified in his own behalf. He was 30 years old and had known the informer, Alfonso Arozco, approximately a month and a half to two months. He first met him through purchasing records from him at the Music City Record Shop. He purchased quite a few records from him. They both liked Latin music. They became friends. They went out together. Orozco tried to interest the appellant in marihuana. Appellant, however, disclaimed any interest in narcotics and denied ever selling marihuana to Orozco, saying that he "was convicted once about it on narcotics, which was twelve years ago," that he had "had it" and didn't want anything more to do with it.

Appellant's story and explanation of what transpired on January 11th is to the effect that he and one Rodney Nelson were driving around Monday morning, January 11th, looking for work. They called at a number of different places without finding employment. They ended up in Minneapolis with no money and almost out of gasoline. Appellant suggested that they go to Orozco's home because Orozco owed him money. (This was substantiated by Orozco, who admitted that he owed the appellant "about $50 or so".) Appellant and Nelson went to Orozco's apartment residence. Appellant made inquiry upstairs and found out that Orozco was not home. He and Nelson decided to wait for Orozco in the car because they were "stuck", having no money and no gasoline. While they were waiting Orozco appeared. Appellant asked Orozco if he could have a couple of dollars of the $20 that the latter owed him. Appellant said Orozco assured him that he could. Orozco then left and returned with the $20 he owed the appellant and also with $30 additional which Orozco was willing to let the appellant have to tide him over the week-end. They had further conversation about a record, but appellant denied that there was any talk about marihuana. Appellant admitted appearing later at the record store and going into a record booth but claimed it was only to hear and to pick up the record he and Orozco had discussed. Appellant denied that he transferred any marihuana to Orozco during his visit to the record shop or during the time he was in the record booth with Orozco.

It is the appellant's first contention that the trial court erred in permitting Narcotics Agent George E. Payne to testify, over appellant's objections, to conversations he had with Alfonso Orozco for the reason that the conversations were hearsay, prejudicial to the appellant, and not admissible for any purpose.

Because the government, on this appeal, takes the position that there was not sufficient objection to the obviously hearsay testimony, that in any event it was "merely cumulative of Orozco's later testimony", and that "conversations which are `introductory and preliminary to other transactions to give the jury an intelligent understanding of the whole of the evidence' are admissible", we feel it necessary to set forth that portion of the direct examination of Agent Payne which follows:

(Payne has been testifying as to their approaching the Orozco apartment and seeing, and Orozco\'s identifying, appellant there in a car.)

"Q. And what happened after that? A. We had a conversation with Orozco. Following that, Orozco approached the car.

"Q. What did Orozco say?

"Mr. Zelle: Pardon me. Your Honor, we object to this as constituting hearsay unless it can be shown that it is properly admissible.

"Mr. Fallon: The purpose of this testimony is to show subsequent activities of both the witness and Orozco.

"The Court: And for that purpose only?

"Mr. Fallon: For that purpose only. It is not introduced to prove the truth of the matter it states.

"The Court: You may answer, Mr. Witness.

"The Witness: I held a conversation with Orozco and asked him who was in the vehicle, and he stated that the defendant, Sanchez, was in the car, and he had seen the car previously, previous to this day. I told him to approach the vehicle and engage Sanchez in conversation.

* * * * * *

"By Mr. Fallon:

"Q. What conversation did you have with Orozco before he left the car, before he left your car? A. I told him —

"Mr. Zelle: Pardon me one moment. I believe this is now repetitive, your Honor. I think we have gone into that conversation.

"The Court: You may answer.

"The Witness: I intructed him to approach the car where Sanchez was parked and engage him in conversation concerning a purchase of marijuana.

"By Mr. Fallon:

"Q. Did you give him any other instructions? A. I instructed him to suggest that the delivery be made at the Music City Record Shop later in the day.

* * * * * *

"Q. You could not hear, I take it, then, anything that was said. Is that right? A. No, sir, I could not.

* * * * * *

"Q. And did you subsequently see him or talk to him? A. Yes, sir. I proceeded back to the Government vehicle in which Agent Sineath was parked, and drove one block away where I met with Orozco again.

"Q. And did he get into the car? A. Yes, sir, he did.

"Q. And did you have any conversation with him that time? A. Yes, sir, I did.

"Q. What was that? A. I asked him what he had learned from Sanchez.

"Mr. Zelle: Your Honor, we will object to any further testimony as to what Orozco told Mr. Payne as to what Mr. Sanchez had told him on the grounds that this would be hearsay.

"Mr. Fallon: Again, your Honor, this is offered to prove the subsequent activities that took place.

"The Court: It may be received for that limited purpose. You may go ahead, Mr. Witness.

"The Witness: Orozco stated to me that he had had a conversation

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