Sandez v. United States, 15016.

• Decision Date: 28 November 1956
• Docket Number: No. 15016.,15016.
• Citation: 239 F.2d 239
• Parties: Salomon R. SANDEZ, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

239 F.2d 239 (1956)

Salomon R. SANDEZ, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 15016.

United States Court of Appeals Ninth Circuit.

November 28, 1956.

William T. Pillsbury, Ernest L. Graves, Long Beach, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott and Norman W. Neukom, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before LEMMON, FEE, and BARNES, Circuit Judges.

BARNES, Circuit Judge.

Defendant Sandez was one of six defendants charged with conspiring to bring narcotic drugs into the United States (Count 10). He was charged with two substantive counts relating to the importation (Count 8) and transportation (Count 9) of narcotics. Five of the six defendants were convicted; one (Golden Elliott) was acquitted by the court, upon motion of her counsel, after the jury had difficulty in coming to a decision as to her guilt or innocence. Sandez was convicted on three counts (Counts 8, 9, and 10); defendant Flores of two. (Counts 9 and 10.)

Sandez alone appeals. His counsel strenuously argues there was reversible error in that:

1. defendant Sandez was never arraigned.

2. certain evidence introduced against Sandez was inadmissible, because obtained thru unlawful search and seizure.

3. the corpus delicti was not established independent of certain admissions, which were not admissible as against Sandez.

4. insufficiency of the evidence to support the verdict against Sandez.

The prosecution of these defendants came about by reason of dealings between a government undercover agent, Laurence Katz, operating under the alias of Benny Lean, and one Vincent Perno, usually known as Vince. Their dealings came to a dramatic conclusion on April 15, 1955, about 8:00 p.m., the time set for delivery of and payoff for the narcotics.

Perno in his dealings with Katz made use of certain telephones located in the Los Angeles area. Among others, one was the number PLeasant 8-1879. This number was listed to the woman defendant: Golden Elliott, who occupied an apartment at 6603 Avalon Blvd., Los Angeles, California. Defendants Perno, Brown, Greer and Elliott were all present at such premises during the fateful day of April 15th, 1955. Defendant Elliott was there only in the morning and in the evening, having worked full time at her regular job that day. There was no testimony that either Flores or Sandez were there on that day, or on any other day.

On that same April 15th, 1955, in accordance with instructions from Perno, Agent Katz rented a room at Ray's Motel, in the 6300 block on So. Figueroa, Los Angeles. From there, Perno, Katz and Katz's partner, agent Wm. Jones, went to a Greyhound Station at 2525 E. Florence Blvd., Los Angeles, where the price to be paid for the narcotics, (a supposed $25,000) was placed by Katz in a public locker, he retaining the key.

Upon returning to Ray's Motel, Katz talked to Perno at PLeasant 8-1879. After some delay, Perno came to contact Katz and Jones, the government agents, at the Ray Motel; and led them by automobile to the place where the narcotics allegedly were to be delivered, after they had supposedly been brought to Los Angeles from Mexico. This was the New Main Motel, located between 70th and 71st on Main St., Los Angeles. This was at 7:40 p.m.; and after some delay Perno, Katz and Jones entered Room 1 of the New Main Motel. Just prior to that entry two men, later identified as Greer and Brown, left Room 1. They went to a parked car on 70th St., and about 8:00 or 8:10 p.m. that night they were arrested sitting in the car at that spot.

During the entire day of April 15th, 1955, Perno had been shadowed by other federal government agents or county deputy sheriffs. That evening, when Katz and Jones in their car followed Perno in his car from Ray's Motel to the New Main Motel, they were "tailed". When the officers following parked their auto on Main St., where they could observe the front entrance to Room 1, they found their car 15 or 20 feet ahead of a 1953 Chevrolet convertible automobile bearing Baja California license plates. There were two occupants therein, later identified as Sandez and Flores. Sandez twice left his car, walked to the corner, and back again. He looked around, at the two cars, at the Motel, and "sort of wrung his hands."

Nothing in the record indicates that either Sandez or Flores, while in the vicinity of 71st and Main, communicated with, or saw, the men within Room 1, or those entering it, or those leaving it.

In that room, No. 1, Perno delivered to Katz the narcotics which were to be purchased. After testing it to be certain it was contraband, Katz and Jones placed Perno under arrest. Perno drew a gun, but was himself shot before he could use it. Agent Katz then stepped outside and fired his gun in the air, as a signal. Whereupon the officers outside placed Sandez and Flores under arrest, and searched them.

The signal indicated to the officers outside that the arrest had been made; that illegal narcotics had been delivered; and that the conspiracy was at an end. They were thus enabled to make a lawful arrest. The fact that the officers knew that others were involved in the commission of a felony; that an automobile bearing Mexican license plates was parked, at night, near the spot designated for delivery, was enough, together with Flores' and Sandez' own actions, to justify an arrest.

The search having been made incidentally to a lawful arrest, it was itself legal. As Justice Minton stated,

"The right to search the person incident to arrest always has been recognized in this country and in England." United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

Further, had there been any question of illegal search, the obligation was upon the defendant to move to suppress the evidence after indictment. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Price v. Johnston, 9 Cir., 125 F.2d 806, certiorari denied 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750.

Failing to make such a motion, he has waived his objection, Segurola v. United States, 275 U.S. 106, 48 S.Ct. 77, 72 L. Ed. 186, unless there exist extenuating circumstances. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145.

When Sandez was searched there was found on him:

(a) an insurance identification card, covering a 1953 Chevrolet automobile, made out to "Sr. Salomon R. Sandez." Ex. 26¹

(b) a business card, bearing the printing:

"Dr. Eloy Ovando H Medico Telefonos 677 Calle 3A, Y Ave. `G' 572 R Tijuana, B.C."

with the printed telephone numbers scratched thru and the number "3623" written in ink. On the reverse of this card, written in pencil by an unknown writer, appeared "Vince, — PL-97818". This number was the phone number of Golden Elliott, provided, that the numerals are read in reverse order.

Search of Flores revealed:

a similar business card of Dr. Eloy Ovando H., Medico, Ex. 25 bearing on the reverse penciled notations, reading

Eddie Sonelly

Pleasant 8-1879

which was the phone number of Golden Elliott. Written in ink on the front of the card was the word:

Senaly

and some figures not referred to in the testimony. The printed telephone numbers of the "Medico" were not scratched out on this card. Although one Eddie Sonnellie was named as a defendant, his name came into evidence principally in connection with Exhibit 29, a letter, which was finally offered only as against the defendant Perno.

Meanwhile, Perno was searched in the ambulance on the way to the hospital and in his wallet was found a card, Ex. 27 generally similar to those found on Sandez and Flores; namely the card of

Eloy Ovando H Medico Telefonos 677 Calle 3A, Y Ave. "G" 572-R Tijuana, B.C.

with the printed telephone numbers scratched out and numbers 3623 and 3563 written in.

On the reverse, in ink there appears:

Freddie Sandez Ave. "F" No. 115 Apt. "C" Tijuana, B.C.

There was no testimony as to who Freddie Sandez was, or whether Salomon R. Sandez, Jr. was connected with, or related to Freddie in any way.

Plaintiff's Exhibit 6 is the American Airlines schedule card, given by Perno to Katz, bearing the phone number PL. 8-1879; the number thru which Katz was instructed to contact Perno.

At this point in the evidence then, we have Sandez present physically near the scene of the delivery of certain narcotics supposedly brought to Los Angeles from Tijuana, Baja California, Mexico. The time was early evening. Sandez was apparently anxiously awaiting some unknown event, seated in an automobile bearing Baja California license plates, in company of one Flores. They both carried business cards of a certain Tijuana doctor. On the reverse of Flores' card was a phone number; which was incriminating to the extent that the number had been one of great importance to the success of the conspiracy. On Sandez' card, the same prefix appeared; and the same digits, tho arranged in reverse order. The defendant Perno carried a similar business card, with the name of one Freddie Sandez, of Tijuana, on it.

Entirely apart from any admissions or statements of co-conspirators, there thus existed some substantial evidence to tie both Flores and Sandez into the conspiracy. This presented an issue of fact, on which the jury was entitled to, and did, find adversely to the appealing defendant. There being substantial evidence in existence for the triers of fact to pass upon, we cannot disturb that verdict on appeal. Penosi v. United States, 9 Cir., 206 F.2d 529. It is not for this court to reevaluate the evidence, or substitute our judgment for that of the jury.

This brings us to the conversations.

These conversations are important in this case. They are usually important in conspiracy cases. They must be considered here, not only in relation to the conspiracy count, but in respect to the substantive counts. There was sufficient evidence, aliunde the conversations, to...